Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2019 - 2020 - 2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
HAZARDOUS WASTE (REGULATION OF EXPORTS AND IMPORTS)
AMENDMENT BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Minister for the Environment,
the Hon Sussan Ley MP)
HAZARDOUS WASTE (REGULATION OF EXPORTS AND IMPORTS)
AMENDMENT BILL 2021
GENERAL OUTLINE
The Hazardous Waste (Regulation of Exports and Imports) Amendment Bill 2021 (the Bill)
would make amendments the Hazardous Waste (Regulation of Exports and Imports) Act
1989 (the Act) to implement Australia's international obligations in relation to plastic wastes,
bring the regulatory powers under the Act into line with contemporary Commonwealth
legislation, and improve the administrative efficiency of the Act.
The Act implements Australia's obligations under the Basel Convention on the Control of
Transboundary Movements of Hazardous Waste and their Disposal (Basel Convention), an
international treaty for the control of the movement of hazardous waste from one country to
another and its disposal. The Act regulates the export, import and transit of hazardous waste
to ensure it is managed in an environmentally sound manner to minimise harmful effects of
hazardous waste on humans and the environment.
The amendments to the Act proposed by the Bill include:
Meet Australia's international obligations
a. implement amendments to the Basel Convention to strengthen transboundary controls on
unsorted plastic wastes and plastic wastes containing hazardous substances and ensure
Australia's compliance with international obligations.
Align with other Commonwealth regulatory provisions as appropriate
b. trigger the Regulatory Powers (Standard Provisions) Act 2014 to adopt standardised
Commonwealth regulatory powers and best practice regulation with minor modifications.
c. improve the compliance and enforcement framework under the Act by:
i. refining existing criminal offences and introducing new strict liability offences
and civil penalty provisions to cover non-compliance relating to the export,
import and transit of hazardous waste;
ii. increasing the penalties for offences relating to the export, import and transit
of hazardous waste and introducing new aggravated offences where the non-
compliance results, or is likely to result, in injury or damage to human beings
or the environment;
iii. introducing new information sharing provisions to authorise sharing of
information across the Commonwealth and state and territory governments
where appropriate; and
iv. introducing recordkeeping requirements, information gathering powers,
mechanisms to protect, use and disclose information, and audit powers to
ensure compliance with the Act.
2
Improve administrative efficiency
d. replace the Hazardous Waste Technical Group with a requirement to consult with persons
with appropriate expertise; and
e. streamline and reduce the complexity of the Act while ensuring the standard of
environmental and human health protection remains high.
FINANCIAL IMPACT STATEMENT
The Bill would have no financial impact on the Australian Government Budget.
3
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
The full statement of compatibility with human rights is attached to this explanatory
memorandum (Attachment A).
4
LIST OF ABBREVIATIONS
The following abbreviations and terms are used in this Explanatory Memorandum:
Act Hazardous Waste (Regulation of Exports and Imports)
Act 1989
Acts Interpretation Act Acts Interpretation Act 1901
Basel Convention Basel Convention on the Control of Transboundary
Movements of Hazardous Waste and their Disposal
[1992] ATS 7, as amended and in force for Australia
from time to time
Bill Hazardous Waste (Regulation of Exports and Imports)
Amendment Bill 2021
Crimes Act Crimes Act 1914
Criminal Code Criminal Code Act 1995
Commonwealth Guide to Guide to Framing Commonwealth Offences,
Framing Offences Infringement Notices and Enforcement Powers 2011
EPBC Act Environment Protection and Biodiversity Conservation
Act 1999
Legislation Act Legislation Act 2003
OECD Decision OECD Decision C(2001)107, being Revision of Decision
C(92)39/FINAL on the control of transboundary
movement of wastes destined for recovery operations,
made on 14 June 2001 by the Council of the
Organisation for Economic Cooperation and
Development
OECD Regulations Hazardous Waste (Regulation of Export and Import)
(OECD Decision) Regulations 1996
PGPA Act Public Governance, Performance and Accountability Act
2013
Privacy Act Privacy Act 1988
Regulatory Powers Act Regulatory Powers (Standard Provisions) Act 2014
Scrutiny of Bills Committee Senate Scrutiny of Bills Committee Sixth Report of 2002:
6th Report Application of Absolute and Strict Liability Offences in
Commonwealth Legislation
5
HAZARDOUS WASTE (REGULATION OF EXPORTS AND IMPORTS)
AMENDMENT BILL 2021
NOTES ON CLAUSES
Clause 1 - Short title
1. Clause 1 would provide that the Bill may be cited as the Hazardous Waste (Regulation of
Exports and Imports) Amendment Act 2021.
Clause 2 - Commencement
2. Clause 2 would provide that sections 1 to 3 of the Bill commence the day after the Bill
receives the Royal Assent.
3. Clause 2 would also have the effect that Schedules 1, 2, 3 and 5, and Parts 1 and 2 of
Schedule 4 would commence on the earlier of a single day set by Proclamation or six
months after the Bill receives the Royal Assent. These provisions would contain the
substantive amendments to the Act.
4. Part 3 of Schedule 4 would commence on the later of the date that the rest of the
Schedules commence, and the date immediately after the commencement of the Federal
Circuit and Family Court of Australia Act 2021.
Clause 3 - Schedules
5. Clause 3 would provide that the legislation that is specified to be amended or repealed as
set out in the Schedules has effect according to the terms of the relevant Schedule.
6. Each of the Schedules in the Bill would amend the Act in the manner specified in the
relevant Schedule.
SCHEDULE 1 - HAZARDOUS WASTE
General Outline
7. The regulatory regime prescribed by the Act, including the requirement to obtain an
export, import or transit permit, only applies to hazardous waste as defined by section 4
of the Act (unless an extended definition applies). The term hazardous waste is defined
with reference to the scope of the Basel Convention, in order to implement Australia's
obligations under that international agreement.
8. The annexes to the Basel Convention provide the basis for determining the types of waste
that fall within the scope of the Convention. The transboundary movement of these
wastes are subject to prior informed consent from transit and importing countries.
9. On 11 May 2019, the 14th meeting of the Conference of Parties to the Basel Convention
adopted by consensus to amend certain annexes to the Basel Convention in order to
strengthen international control of unsorted plastic wastes and plastic wastes containing
6
hazardous substances (the Decision). These Convention amendments made by the
Decision entered into force on 1 January 2021.
10. The amendments made by Schedule 1 to the Bill (item 1) would implement these changes
and ensure Australia's compliance with the Basel Convention.
11. The amendments made by Schedule 1 to the Bill (item 2) would also rectify an
inconsistency in the current definition of hazardous waste in section 4 of the Act by
excluding radioactive wastes from that definition, consistent with the Basel Convention.
Details of the amendment
Item 1
12. Section 4 of the Act currently defines hazardous waste as:
a) waste prescribed by the regulations, where the waste has any of the characteristics
mentioned in Annex III to the Basel Convention; or
b) wastes covered by paragraph 1(a) of Article 1 of the Basel Convention; or
c) household waste; or
d) residues arising from the incineration of household wastes,
but does not include wastes covered by paragraph 4 of Article 1 of the Basel Convention.
13. On 11 May 2019 the Conference of the Parties to the Basel Convention made the decision
(the Decision) to amend the Basel Convention to:
add to Annex II of the Convention: a new waste code representing 'plastic wastes,
including mixtures of such wastes' other than specified categories of plastic waste
(being the categories that will be added to Annex IX of the Convention under
paragraph 4 of the Decision);
add to Annex VIII of the Convention: 'plastic waste, including mixtures of such
waste, containing or contaminated with Annex I constituents, to an extent that it
exhibits an Annex III characteristic;
provide that entry B3010 in Annex IX to the Convention is only effective until 31
December 2020;
Add a new entry, B3011, to Annex IX to the Convention that would provide for
specified types of plastic waste. This new entry will include certain plastic wastes and
certain mixtures of plastic waste that are destined for recycling in an environmentally
sound manner and almost free of contamination and other types of wastes.
14. The amendments mean that these types of plastics will now fall within the scope of the
Convention.
7
15. Annex II to the Basel Convention lists categories of wastes requiring special
consideration which are within the scope of the Convention even if they do not otherwise
fall within the Basel Convention definition of hazardous waste. This means that Annex II
wastes are also subject to similar transboundary movement controls under the Basel
Convention. The Decision adds a new waste code representing 'plastic wastes, including
mixtures of such wastes' to Annex II to the Basel Convention.
16. Unlike the Basel Convention, the Act does not list 'hazardous wastes' and 'other wastes'
separately. Rather, the Act includes these 'other wastes' in the definition of hazardous
waste in section 4 (currently under paragraphs (c) and (d)). This is for simplicity, given
that both hazardous wastes and other wastes under the Basel Convention are subject to the
similar transboundary movement controls.
17. Item 1 would amend the definition of hazardous waste in section 4 of the Act to add a
new paragraph (e). New paragraph (e) would cover plastic wastes, including mixtures of
such wastes, covered by Annex II to the Basel Convention.
18. This item would implement paragraph 1 of the Decision (as described above) by ensuring
the same transboundary movement controls under the Act also apply to these types of
plastic wastes. It is intended that this item would assist in reducing the amount of plastic
waste entering the environment through the minimisation and environmentally sound
management of plastic waste, as well as the effective control of its transboundary
movement.
19. Amendments to the Act are not required to implement paragraphs 2 to 4 of the Decision
(as described above). It is intended that regulation amendments will be made to
implement paragraph 3 and 4 of the Decision.
Item 2
20. Item 2 would amend the definition of hazardous waste in section 4 to exclude wastes
covered by paragraph 3 of Article 1 of the Basel Convention from that definition.
21. Paragraphs 3 and 4 of Article 1 of the Basel Convention excludes two types of waste that
are subject to other international control systems or international instruments from the
scope of the Convention: radioactive materials (paragraph 3) and wastes derived from the
normal operation of a ship (paragraph 4). This means that for the purposes of the Basel
Convention, neither radioactive waste nor wastes derived from the operation of a ship are
considered 'hazardous waste'.
22. While wastes covered by paragraph 4 of Article 1 of the Basel Convention are currently
excluded from the definition of hazardous waste in section 4 of the Act, wastes covered
by paragraph 3 of Article 1 of the Basel Convention are not.
23. This item would rectify this inconsistency and have the effect of excluding radioactive
wastes from the definition of hazardous waste for the purpose of the Act, in addition to
wastes derived from the normal operation of a ship.
8
SCHEDULE 2 - REGULATORY POWERS
General Outline
24. Schedule 2 would amend the compliance and enforcement regime of the Act by adopting
the standard suite of provisions under the Regulatory Powers Act and inserting new audit
powers. The new regulatory regime would consist of monitoring and investigation
powers, audit powers, as well as enforcement provisions through the use of civil
penalties, infringement notices, enforceable undertakings and injunctions. A
comprehensive compliance and enforcement framework would enable Australia to more
effectively manage the transboundary movement of hazardous waste to ensure human
beings and the environment, both within and outside Australia, are protected from the
harmful effects of hazardous waste and that Australia's obligations under the Basel
Convention are complied with.
25. Triggering the standard provisions of the Regulatory Powers Act would also provide a
consistent framework, streamline Commonwealth regulatory powers and increase legal
certainty for businesses and individuals who are subject to the Act.
26. This Schedule would also make modifications to the operation of the Regulatory Powers
Act in order to retain existing powers in the Act, and to provide for a number of
additional powers to ensure a robust compliance and enforcement scheme. These
modifications would ensure that the regulatory powers in the Act are appropriately
adapted to effective regulation in the context of non-compliance in relation to the import,
export or transit of hazardous waste, consistent with Australia's international obligations
under the Basel Convention.
Comparison of Provisions
27. The below table identifies the corresponding provisions of the Regulatory Powers Act for
the sections of the Act that would be repealed by this Schedule. As set out below, existing
powers in the Act would be either retained by, or aligned with, standard provisions in the
Regulatory Powers Act or by modifications to standard provisions of the Regulatory
Powers Act. New powers are listed as gains.
Provision Current Provision as amended Applicable provision
provision by this Schedule (Regulatory Powers Act)
in the
Hazardous
Waste Act
Monitoring powers Part 5 Part 2-Monitoring
Identity cards 43 Aligned 35
Proof of authority 44 Aligned 25(6), 26(b), 35(6)
Power to control movement 45 Retained through N/A
of vessels and aircraft etc. modification to the
operation of the
Regulatory Powers Act
9
Provision Current Provision as amended Applicable provision
provision by this Schedule (Regulatory Powers Act)
in the
Hazardous
Waste Act
Entry and search of 46(1) Retained 18
searchable places - 46(2)
monitoring compliance
Power to stop and detain a 46(3) Retained through N/A
vessel, aircraft or vehicle modification to the
operation of the
Regulatory Powers Act
Power to search any part of 48(1)(a) Retained 19(a)
place or premises and
anything on premises
Power to examine or observe N/A Gained 19(b)
any activity conducted on the
premises
Power to inspect, examine, 48(1)(b) Retained through 19(c)
take measurements, conduct modification to the
tests (including by taking operation of the
samples) concerning any Regulatory Powers Act
structure, plant, substance or
other thing on premises
Power to make any still or N/A Gained 19(d)
moving images or recording
of premises or anything on
premises
Power to inspect any N/A Gained 19(e)
documents on premises
Power to take extracts and 48(1)(c) Retained 19(f)
copies from documents
Power to take such 48(1)(f) Retained 19(g)
equipment onto premises as
required for purposes of
exercising powers
Power to ask questions and 48(1)(d) Aligned 24
seek production of 48(1)(e)
documents 48(3)
48(3A)
Monitoring warrants 49 Aligned 32
Operating electronic N/A Gained 20
equipment
Securing electronic N/A Gained 21
equipment to obtain expert
assistance
10
Provision Current Provision as amended Applicable provision
provision by this Schedule (Regulatory Powers Act)
in the
Hazardous
Waste Act
Securing evidence of the N/A Gained 22
contravention
Persons assisting authorised N/A Gained 23
persons
Obligations and incidental N/A Gained Division 3 (sections 25 - 29)
powers of authorised persons
Occupier's rights and N/A Gained Division 4 (sections 30-31)
responsibilities
Extension of periods in N/A Gained 33
which things secured
Powers of issuing officers N/A Gained 34
Investigation powers Part 5 Part 3-Investigation
Identity cards 43 Aligned 76
Proof of authority 44 Aligned 76(6), 55(6), 56(b)
Entering premises by consent 47(1) Retained 48
or under warrant 47(3)
Powers to seize evidence 47(2)(a) Retained 49(b)(ii)
Keeping or return of seized 47(2)(b) Aligned 66
things
Copy or access to seized 47(2)(c) Aligned 64
documents
Receipts for seized things N/A Gained 65
Issuing officer may permit a N/A Gained 67
thing to be retained
Disposal of seized things N/A Gained 68
Compensation for acquisition N/A Gained 69
of property
Seizure of other evidence 47(4) Retained 52
(including for other offences)
when under warrant
Power to stop and detain 47(5) Retained through N/A
vessel, aircraft or vehicle modification to the
operation of the
Regulatory Powers Act
Power to search any part of 48(1)(a) Retained 49(a), 49(b)(i)
place or premises and
anything on premises
11
Provision Current Provision as amended Applicable provision
provision by this Schedule (Regulatory Powers Act)
in the
Hazardous
Waste Act
Power to inspect, examine, 48(1)(b) Retained through 49(c)
take measures, conduct tests modification to the
concerning any structure, operation of the
plant, substance or other Regulatory Powers Act
thing in or on place
Power to take extracts and 48(1)(c) Aligned 49(b)(ii), 49(d)
copies from documents
Power to ask questions and 48(1)(d), Aligned 54(2), 54(3), 54(4), 54(5),
seek production of books, 48(1)(e), 47(1)
records and documents 48(3),
48(4)
Reasonable excuse for failing 48(3A) Aligned 47(1), 54(4)
to comply
Power to take such 48(1)(f) Retained 49(e)
equipment onto premises as
required for purposes of
exercising powers
No exercise of powers unless 48(2) Retained 48(2)
entry by consent or by
warrant
Power to operate electronic N/A Gained 50
equipment
Power to secure electronic N/A Gained 51
equipment to obtain expert
assistance
Persons assisting authorised N/A Gained 53
persons
Obligations and incidental N/A Gained Division 3 (sections 55 - 61)
powers of authorised persons
Occupier's rights and N/A Gained Division 4 (sections 62 - 63)
responsibilities
Offence related warrants 50 Aligned 70
Offence related warrants by 51 Retained 71, 72
telephone
Offence relating to warrants N/A Gained 73
by telephone, fax etc
Extension of periods in N/A Gained 74
which things secured
Powers of issuing officers N/A Gained 75
12
Provision Current Provision as amended Applicable provision
provision by this Schedule (Regulatory Powers Act)
in the
Hazardous
Waste Act
Civil penalty provisions N/A Gained Part 4-Civil Penalty
Provisions
Infringement notices N/A Gained Part 5-Infringement Notices
Enforceable undertakings N/A Gained Part 6-Enforceable
Undertakings
Injunctions 41 Part 7-Injunctions
Grant restraining injunctions 41(1) Retained 121(1)
Grant performance 41(2) Retained 121(2)
injunctions
Grant of interim restraining 41(3) Retained 122(1)(a)
injunctions
Grant of interim performance N/A Gained 122(1)(b)
injunctions
Discharging or varying 41(4) Retained 123
injunctions
Certain limits on granting 41(5) Retained through 124(1)
injunctions do not apply - modification to the
restraining injunctions operation of the
Regulatory Powers Act
Certain limits on granting 41(6) Retained through 124(2)
injunctions do not apply - modification to the
performance injunctions operation of the
Regulatory Powers Act
No undertakings as to 41(7) Retained 122(2)
damages
Other powers of a relevant 41(8) Retained 125
court unaffected
Relevant court 41(9) Retained 120
Details on the amendments
Part 1 - Amendments
Item 1 - section 4
28. Item 1 would amend section 4 of the Act to insert a number of new definitions that are
used in this Schedule. As the definition of this Act in section 4 includes the regulations,
the definitions inserted by this item would also apply to regulations made under the Act.
29. This item would also include some 'signpost' definitions that refer readers to where in the
Act the terms are substantively defined, including if the term is defined in the Regulatory
Powers Act.
13
Item 2
30. Item 2 would amend section 4 to repeal the definition of identify card and substitute a
new definition that defines identity card, in relation to an inspector, as an identity card
issued to an inspector under section 35 or 76 of the Regulatory Powers Act to the extent
that either of those sections applies in relation to a provision of the Act.
Item 3
31. Item 3 would amend section 4 of the Act to repeal the definition of offence against a
provision of Part 4. This definition is no longer needed due to amendments in Schedule 2
to this Bill.
Item 4
32. Item 4 would amend section 4 of the Act to repeal the definition of offence against this
Act as this definition is no longer needed. This definition is no longer needed due to
amendments in Schedule 2 to this Bill.
Item 5
33. Item 5 would amend section 4 of the Act to insert a definition of the Regulatory Powers
Act, a relevant person, and the Secretary.
Item 6
34. Item 6 would amend section 4 of the Act to repeal the definition of within Australian
jurisdiction as this definition is no longer needed. An equivalent definition of Australian
jurisdiction would be inserted by item 1 of this Schedule.
Item 7
35. Item 7 would repeal section 8 of the Act as it is no longer necessary due to the
amendments in Schedule 4 to this Bill.
Item 8
36. Item 8 would amend the heading of section 9 to omit "of Act". This would reflect the
amendment made by item 9.
Item 9
37. Item 9 would amend section 9 of the Act to include a reference to the Regulatory Powers
Act. This item would be required as a consequence of items 18 and 20 of this Schedule,
which trigger the Regulatory Powers Act to apply to the Act.
38. This item would ensure that the operation of the Regulatory Powers Act, to the extent that
it applies in relation to a provision of the Act, extends to every external Territory of
Australia, along with the Act.
14
Item 10
39. Item 10 would amend the Act to insert new sections 9A and 9B. New sections 9A and 9B
would clarify that the Act is intended to operate extraterritorially and is intended to
regulate activities outside of Australia.
40. This item would seek to clarify the operation of the Act, rather than changing its current
operation. It is already the case that the Minister may, for example, grant an export permit
under the Act which specifies a range of particulars and imposes conditions which
purport to operate extraterritorially. These may include specifying the transit ports the
hazardous waste must pass through on its way to the destination port, and the disposal
facility and methods in the destination country that are required to be used.
Section 9A - Extraterritorial operation
41. New subsection 9A(1) would provide that, subject to the remainder of section 9A, the
Act, and the Regulatory Powers Act as it relates to the Act, extends to acts, omissions,
matters and things outside of the Australian jurisdiction. The note following subsection
9A(1) explains that some searchable places will be outside the Australian jurisdiction.
42. New subsection 9A(2) limits the application of the Act, and the Regulatory Powers Act as
it relates to the Act, outside Australian jurisdiction to relevant Australian entities. This is
to ensure compliance with Australia's obligations under international law. Subsection
9A(6) would define an Australian entity as an Australian citizen or resident, a body
corporate established under an Australian law, an Australian aircraft or an Australian
vessel.
43. New subsection 9A(3) would clarify that the Act, and the Regulatory Powers Act as it
relates to the Act, applies to all persons and all searchable places within the Australian
jurisdiction (such as premises, aircraft, vessels and vehicles), including foreign persons
and foreign owned or occupied searchable places. Subsection 9A(6) would define a
foreign person as a person other than an Australian citizen or resident, or body corporate
established under Australian law. Australian jurisdiction would be defined as Australia or
Australian waters, including over Australia or Australian waters (see amendments made
by item 1 of this Schedule).
44. New subsections 9A(4) would clarify that subsection 9A has effect subject to Australia's
international obligations and any Commonwealth law giving effect to such obligations.
New subsection 9A(5) would further clarify that the exercise of a power under the Act, or
the Regulatory Power Act as it relates to the Act, in a foreign country would require the
consent of that country, if such consent is required under international law (including
requirements under any international agreement binding of Australia).
Section 9B - Geographical application of offences
45. New section 9B would have the effect of clarifying that the standard geographical
jurisdiction in the Criminal Code does not apply in relation to an offence under the Act.
The geographical jurisdiction of offences under the Act would instead be governed by
new section 9A. This is reflected in the note following new section 9B.
15
Item 11
46. Item 11 would amend section 10A of the Act to add the words 'and Division 14' to reflect
an update to the Criminal Code.
Item 12
47. Item 12 would amend subsection 17(2) of the Act to omit the reference to subsections '(4)
or (5)' and substitute a reference to subsections '(4), (5) or (5A)'. The amendment made
by this item is consequential to the amendment made by item 13.
Item 13
48. Item 13 would amend section 17 of the Act to insert new subsection 17(5A). New
subsection 17(5A) would permit the Minister to refuse to grant a Basel import or export
permit if the applicant has previously failed to provide, or arranged to provide, an auditor
with assistance that is reasonably necessary for the conduct of an audit.
49. Item 13 would also insert two notes after new subsection 17(5A). The first note would
explain to readers that the requirement to provide an auditor with assistance that is
reasonably necessary for the conduct of an audit is in new section 54 (see amendments
made by item 18 of this Schedule). The second note would explain that the relevant audit
may not be in relation to a permit, as the requirement imposed by new section 54 would
apply to any audit of operations covered by a permit, a ministerial order, a notification
given under new section 33G that no transit permit is required, or other prescribed
operations.
50. In addition to the power to revoke a permit or notification for non-compliance with the
requirement in new section 54, the potential for a future permit to be refused is an
important administrative consequence to ensure compliance with audit provisions under
the Act.
Item 14
51. Item 14 would amend section 17A of the Act to insert new subsection 17A(4). New
subsection 17A(4) would permit the Minister to refuse to grant a Basel transit permit if
the applicant has previously failed to provide, or arranged to provide, an auditor with
assistance that is reasonably necessary for the conduct of an audit.
52. Item 14 would also insert two notes after new subsection 17A(4). The first note would
explain to readers that the requirement to provide an auditor with assistance that is
reasonably necessary for the conduct of an audit is in new section 54 (see amendments
made by item 18 of this Schedule). The second note would explain that the relevant audit
may not be in relation to a permit, as the requirement imposed by new section 54 would
apply to an any audit of operations covered by a permit, a ministerial order, a notification
given under new section 33G that no transit permit is required, or other prescribed
operations.
53. In addition to the power to revoke a permit or notification for non-compliance with the
requirement in new section 54, the potential for a future permit to be refused is an
16
important administrative consequence to ensure compliance with audit provisions under
the Act.
Item 15
54. Item 15 would amend the Act to repeal section 41. Existing section 41 deals with
injunctions. This section would no longer be necessary as item 20 of this Schedule would
amend the Act to apply the standard injunction provisions in Part 7 of the Regulatory
Powers Act.
55. The comparison table provided above identifies the corresponding provisions of the
Regulatory Powers Act for the provisions of the Act that are repealed by this item.
Item 16
56. Item 16 would amend the Act to repeal the existing heading to Part 5 and substitute the
new heading "Part 5 - Compliance powers". This new heading would more accurately
describe the provisions in this Part.
Item 17
57. Item 17 would amend the Act to insert the new heading "Division 1 - Inspectors" before
section 42.
Item 18
58. Item 18 would amend the Act to insert a new Division 2 into Part 5.
59. The new Division 2 (new sections 43 to 55) would outline the powers of inspectors, who
are appointed by the Minister under section 42 of the Act. This item would trigger Parts 2
and 3 of the Regulatory Powers Act and insert additional monitoring and investigation
powers to provide a comprehensive compliance regime for the Act. This item would also
provide inspectors with audit powers which will be an important compliance tool in
ensuring the compliance of persons with permits, orders, notifications and requirements
under the Act.
Subdivision A - Monitoring and investigation powers
Section 43 - Monitoring powers
60. New section 43 would trigger the standard monitoring powers in Part 2 of the Regulatory
Powers Act. The note following new subsection 43(1) would explain that Part 2 of the
Regulatory Powers Act creates a framework for monitoring compliance with the Act.
This would include powers of entry and inspection.
61. Subsections 43(1) and (2) would have the combined effect that the monitoring powers
triggered under Part 2 of the Regulatory Powers Act would be able to be exercised for the
purpose of:
monitoring compliance with provisions in the Act and offence provisions of the
Crimes Act or the Criminal Code; and
17
determining whether information given in compliance, or purported compliance
with those provisions is correct.
62. Paragraph 43(3)(a) would provide that, for the purposes of Part 2 of the Regulatory
Powers Act, there are no related provisions.
63. Paragraphs 43(3)(b) and 43(4)(a) would have the combined effect that, for the purposes of
Part 2 of the Regulatory Powers Act, an inspector (appointed under section 42 of the Act)
is both an authorised applicant and an authorised person. This means that an inspector
would be able to exercise the monitoring powers set out in Part 2 of the Regulatory
Powers Act.
64. An officer of Customs would also be an authorised person in relation to new sections 48
and 49 (see below) and information given in compliance or purported compliance with
either of those sections (paragraph 43(4)(b)). This is appropriate as these powers may
involve requiring the production of permits or orders from persons located on a vessel
that has been stopped or detained.
65. Paragraphs 43(3)(c), (d) and (e) would provide, respectively, that for the purposes of Part
2 of the Regulatory Powers Act, an issuing officer is a magistrate, the Secretary is the
relevant chief executive, and the Court (defined in section 4 of the Act as the Federal
Court of Australia) is the relevant court.
66. Unlike the exercise of investigation powers, inspectors would not need to suspect on
reasonable grounds that there may be material on the premises related to a contravention
of an offence or civil penalty provision before exercising relevant monitoring powers.
However, an inspector would need to have either the consent of the occupier or a
monitoring warrant to enter premises to exercise the monitoring powers under Part 2 of
the Regulatory Powers Act (subsection 18(2) of the Regulatory Powers Act).
67. The general monitoring powers set out in Part 2 of the Regulatory Powers Act would also
permit an inspector to, among other things:
search premises, measure or test anything on the premises; photograph things or
make copies of documents;
take necessary equipment onto the premises;
ask persons on the premises questions and request the production of documents;
operate electronic equipment;
secure electronic evidence for 24 hours in order to obtain expert assistance.
18
68. New subsection 43(5) would have the effect that an inspector may be assisted by other
persons in exercising powers or performing functions or duties under Part 2 of the
Regulatory Powers Act as it applies to the Act.
69. It is necessary to allow other persons to assist inspectors to exercise powers or perform
functions under Part 2 of the Regulatory Powers Act (as it applies to the Act) because
there may be circumstances where no other inspector is available to assist, or because
special skills are required for the assistance needed (for example, locksmiths). Subsection
43(5) would not impose specific training requirements for a person assisting an inspector,
as the relevant expertise required would differ depending on purpose of the assistance.
However, under paragraph 23(1)(a) of the Regulatory Powers Act, a person exercising
monitoring powers may only be assisted by another person if it is necessary and
reasonable to do so. In addition, a person assisting an inspector would be subject to any
directions given by the inspector under paragraph 23(2)(d) of the Regulatory Powers Act
and a power exercised by a person assisting an inspector would be taken to have been
exercised by the inspector in accordance with subsection 23(3) of the Regulatory Powers
Act. The inspector would have direct responsibility and oversight of the powers exercised
and functions performed under Part 2 of the Regulatory Powers Act (as it applies to this
Act).
Section 44 - Modification of monitoring powers
70. New section 44 would provide for additional monitoring powers beyond those provided
for under Part 2 of the Regulatory Powers Act and modify the operation of some of the
provisions in Part 2 of the Regulatory Powers Act as it applies to the Act. These
additional powers and modifications are necessary to retain existing powers in the Act
and ensure the effective operation of the Regulatory Powers Act, as it applies to the Act.
71. Consistent with new section 43, the additional monitoring powers in new section 44
would be able to be exercised for the purpose of:
monitoring compliance with provisions in the Act and offence provisions of the
Crimes Act and the Criminal Code; and
determining whether information given in compliance, or purported compliance
with those provisions is correct.
72. Subsection 44(2) would provide for the following additional monitoring powers:
the power to sample any thing on a searchable place entered under Part 2 of the
Regulatory Powers Act;
the power to remove, test and analyse such samples;
the power to secure a searchable place entered under Part 2 of the Regulatory
Powers Act; and
19
the power to secure things on a searchable place entered under Part 2 of the
Regulatory Powers Act for the purpose of testing or analysing those things.
73. These additional monitoring powers are appropriate because it may be necessary to secure
things and premises, and to take and test samples of things, in order to facilitate
compliance with the Act. For example, if a permit allowed for the export of a certain type
of hazardous waste, testing and analysing a sample of waste may be necessary to confirm
that the waste for export was the type of hazardous waste allowed under the permit.
74. Subsection 44(2) would also clarify that the powers set out at new sections 47, 48 and 49
are also additional monitoring powers. These provisions are described in detail below.
75. New subsections 44(3) to 44(8) would modify powers in Part 2 of the Regulatory Powers
Act for the purposes of their application to the Act.
76. Subsection 44(3) would have the effect that references in Part 2 of the Regulatory Powers
Act to 'premises' should be taken, to the extent that the Regulatory Powers Act applies to
the Act, to be a reference to a searchable place as defined in section 4 of the Act. This is
necessary because the Act uses the concept of a searchable place rather than premises. A
searchable place is defined in section 4 as meaning premises in Australia, an aircraft,
vehicle or vessel within Australian jurisdiction, an Australian aircraft, an Australian
platform or an Australian vessel.
77. Subsection 44(4) would have the effect that references in Part 2 of the Regulatory Powers
Act to 'occupier' should be taken, to the extent that the Regulatory Powers Act applies to
the Act, to be a reference to a relevant authority as defined in section 4 of the Act. This is
necessary because the Act uses the concept of a relevant authority rather than premises. A
relevant authority is defined in section 4 as meaning the occupier of the premises (for
premises in Australia) and the person in command or control, or who appears to be in
command or control, of the place (for all other places). This broader concept is necessary
because searchable places include moveable things such as Australian aircraft and
vessels.
78. Subsection 44(5) would have the effect that if an authorised person is authorised under
section 18 of the Regulatory Powers Act to enter a searchable place that is a vessel,
aircraft or vehicle, the monitoring powers under Part 2 of the Act are taken to include the
power to stop and detain the vessel, aircraft or vehicle for the purposes of entering the
vessel, aircraft or vehicle to exercise the monitoring powers. This is a necessary practical
modification to take account of the need to exercise monitoring powers on searchable
places that are moveable.
79. Subsection 44(6) would have the effect that the requirement in paragraph 26(b) of the
Regulatory Powers Act for an authorised person to show their identity card before
entering premises under a monitoring warrant does not apply if the authorised person
reasonably believes that showing their identity card before entering a searchable place is
not practicable in the circumstances. However, the authorised person would be required to
20
show their identity card as soon as practicable to the relevant authority of the searchable
place or another person who apparently represents the relevant authority of the searchable
place (subsection 44(7)). This is a necessary practical modification to take account of the
need to exercise monitoring powers on searchable places that are moveable and that may
need to be stopped and detained quickly.
80. Subsection 44(8) would have the effect that an authorised person, or a person assisting an
authorised person, when executing a monitoring warrant, may use necessary and
reasonable force against things. This would ensure that inspectors can take the necessary
measures to monitor compliance with the Act and takes into consideration the special
requirements that may be needed for effective monitoring. An example of where use of
force may be necessary is opening locked cabinets to access records relating to the
transboundary movement of hazardous waste, or opening locked containers of hazardous
waste that is proposed to be exported or that has been imported (in order to ascertain
whether an permit is being, or has been, complied with). This clause does not authorise
the use of force against a person in executing a monitoring warrant.
81. As is the case for the general monitoring powers in Part 2 of the Regulatory Powers Act,
the additional monitoring powers in section 44 would only be able to be exercised with
the consent of the occupier or under a monitoring warrant.
Section 45 - Investigation powers
82. New section 45 would trigger the standard investigation powers in Part 3 of the
Regulatory Powers Act. The note following new subsection 45(1) would explain that Part
3 of the Regulatory Powers create a framework for investigating compliance with the Act.
83. The investigation powers triggered under Part 3 of the Regulatory Powers Act would be
able to be exercised for the purpose of investigating compliance with the offence and civil
penalty provisions in the Act or an offence against the Crimes Act or Criminal Code that
relates to the Act (subsection 45(1)).
84. Paragraph 45(2)(a) would provide that, for the purposes of Part 3 of the Regulatory
Powers Act, there are no related provisions.
85. Paragraphs 45(2)(b) and 45(3)(a) would have the combined effect that, for the purposes of
Part 3 of the Regulatory Powers Act, an inspector (appointed under section 42 of the Act)
is both an authorised applicant and an authorised person. This means that an inspector
would be able to exercise the investigation powers set out in Part 3 of the Regulatory
Powers Act.
86. An officer of Customs would also be an authorised person in relation to evidential
material that relates to either new sections 48 or 49 (see below) (paragraph 45(3)(b)). This
is appropriate as these powers may involve requiring the production of permits or orders
from persons located on a vessel that has been stopped or detained.
21
87. Paragraphs 45(2)(c), (d) and (e) would provide, respectively, that for the purposes of Part
3 of the Regulatory Powers Act, an issuing officer is a magistrate, the Secretary is the
relevant chief executive, and the Court (defined in section 4 of the Act as the Federal
Court of Australia) is the relevant court.
88. The investigation powers triggered under Part 3 of the Regulatory Powers Act would
allow an authorised person to enter a premise to exercise investigation powers if they
suspect on reasonable grounds that there is evidential material on the premises
(subsection 48(1) of the Regulatory Powers Act). However, they can only do so with the
consent of the occupier or under an investigation warrant (subsection 48(2) of the
Regulatory Powers Act).
89. The investigation powers set out in Part 3 of the Regulatory Powers Act would also
permit an authorised person to, among other things:
search the premises and seize evidential material;
inspect, test and copy evidential material;
take necessary equipment onto the premises;
ask persons on the premises questions and request the production of documents;
operate electronic equipment found on the premises and secure electronic evidence
for 24 hours in order to obtain expert assistance.
90. These investigation powers would allow non-compliance to be more easily detected and
ultimately reduced, leading to greater compliance with the Act. This will support better
environmental outcomes and assist in ensuring compliance with Australia's obligations
under the Basel Convention.
91. New subsection 45(4) would have the effect that an inspector may be assisted by other
persons in exercising powers or performing functions or duties under Part 3 of the
Regulatory Powers Act as it applies to the Act.
92. It is necessary to allow other persons to assist inspectors to exercise powers or perform
functions under Part 3 of the Regulatory Powers Act (as it applies to the Act) because
there may be circumstances where no other inspector is available to assist, or because
special skills are required for the assistance needed (for example, locksmiths). Subsection
45(4) would not impose specific training requirements for a person assisting an inspector,
as the relevant expertise required would differ depending on purpose of the assistance.
However, under paragraph 53(1)(a) of the Regulatory Powers Act, a person exercising
investigation powers may only be assisted by another person if it is necessary and
reasonable to do so. In addition, a person assisting an inspector would be subject to any
directions given by the inspector under paragraph 53(2)(d) of the Regulatory Powers Act
and a power exercised by a person assisting an inspector would be taken to have been
exercised by the inspector in accordance with subsection 53(3) of the Regulatory Powers
22
Act. The inspector would have direct responsibility and oversight of the powers exercised
and functions performed under Part 3 of the Regulatory Powers Act (as it applies to this
Act).
Section 46 - Modifications of investigation powers
93. New section 46 would provide for additional investigation powers beyond those provided
for under Part 3 of the Regulatory Powers Act and modify the operation of some of the
provisions in Part 3 of the Regulatory Powers Act as it applies to the Act. These
additional powers and modifications are necessary to retain existing powers in the Act
and also to ensure the effective operation of the Regulatory Powers Act, as it applies to
the Act.
94. Consistent with new section 45, the additional investigation powers in new section 46
would be able to be exercised for the purpose of investigating compliance with the
offence and civil penalty provisions in the Act or an offence against the Crimes Act or
Criminal Code that relates to the Act (subsection 46(1)).
95. Subsection 46(2) would provide for the following additional investigation powers:
the power to sample any thing on a searchable place entered under Part 3 of the
Regulatory Powers Act;
the power to remove, test and analyse such samples;
the power to secure a searchable place entered under Part 3 of the Regulatory
Powers Act; and
the power to secure things on a searchable place entered under Part 3 of the
Regulatory Powers Act for the purpose of sampling, testing or analysing those
things.
96. These additional investigation powers are appropriate because it may be necessary to
secure things and premises, and to take and test samples of things, in order to facilitate
compliance with the Act. For example, if a permit allowed for the export of a certain type
of hazardous waste, testing and analysing a sample of waste may be necessary to confirm
that the waste for export was the type of hazardous waste allowed under the permit.
97. Subsection 46(2) would also clarify that the powers set out at new sections 47, 48 and 49
are also additional investigation powers. These provisions are described in detail below.
98. New subsections 46(3) to 46(6) would modify powers in Part 3 of the Regulatory Powers
Act for the purposes of their application to the Act.
99. Subsection 46(3) would have the effect that references in Part 3 of the Regulatory Powers
Act to 'premises' should be taken, to the extent that the Regulatory Powers Act applies to
the Act, to be a reference to a searchable place as defined in section 4 of the Act. This is
23
necessary because the Act uses the concept of a searchable place rather than premises. A
searchable place is defined in section 4 as meaning premises in Australia, an aircraft,
vehicle or vessel within Australian jurisdiction, an Australian aircraft, an Australian
platform or an Australian vessel.
100. Subsection 46(4) would have the effect that references in Part 3 of the Regulatory
Powers Act to 'occupier' should be taken, to the extent that the Regulatory Powers Act
applies to the Act, to be a reference to a relevant authority as defined in section 4 of the
Act. This is necessary because the Act uses the concept of a relevant authority rather than
premises. A relevant authority is defined in section 4 as meaning the occupier of the
premises (for premises in Australia) and the person in command or control, or who
appears to be in command or control, of the place (for all other places). This broader
concept is necessary because searchable places include moveable things such as
Australian aircraft and vessels.
101. Subsection 46(5) would have the effect that if an authorised person is authorised
under section 48 of the Regulatory Powers Act to enter a searchable place that is a vessel,
aircraft or vehicle, the investigation powers under Part 3 of the Act are taken to include
the power to stop and detain the vessel, aircraft or vehicle for the purposes of entering the
vessel, aircraft or vehicle to exercise the investigation powers. This is a necessary
practical modification to take account of the need to exercise investigation powers on
searchable places that are moveable.
102. Subsection 46(6) would have the effect that an authorised person, or a person assisting
an authorised person, when executing an investigation warrant, may use necessary and
reasonable force against things. This would ensure that inspectors can take the necessary
measures to investigate compliance with the Act and takes into consideration the special
requirements that may be needed for effective investigation. An example of where use of
force may be necessary is opening locked cabinets to access records relating to the
transboundary movement of hazardous waste, or opening locked containers of hazardous
waste that is proposed to be exported or that has been imported (in order to ascertain
whether a permit is being, or has been, complied with). This clause does not authorise the
use of force against a person in executing an investigation warrant.
103. As is the case for the general investigation powers in Part 3 of the Regulatory Powers
Act, the additional investigation powers in section 46 would only be able to be exercised
with the consent of the occupier or under an investigation warrant.
Section 47 - Additional monitoring and investigation powers - control of movement of
vessels and aircraft etc
104. New section 47 would provide for an additional monitoring and investigation power
(for the purposes of Parts 2 and 3 of the Regulatory Powers Act) that replicates the
content of existing section 45 of the Act. Section 45 of the Act would be repealed by item
19 of this Schedule.
24
105. It is appropriate for this existing power in the Act to be retained because it deals with
the specific issues that arise where regulatory powers need to be exercised on, or in
relation to, a searchable place that is moveable, such as vessel or aircraft.
106. New section 47 would apply if an authorised person has reasonable grounds for
suspecting that there is hazardous waste that is to be, or has been, imported, exported or
the subject of a transit proposal in or on an Australian vessel or Australian aircraft, or a
vessel or aircraft that is within Australian jurisdiction (subsection 47(1)).
107. Under subsections 47(2) and (3), the authorised person may require the person in
command or control (or who appears to be in command and control) to do one or more of
the following:
ensure the vessel or aircraft does not remain within, or does not come within,
Australian jurisdiction;
ensure the vessel or aircraft is brought to a specified place or airport that is a safe and
practicable place to bring the vessel or land the aircraft;
ensure the vessel or aircraft remains at a specified place or aircraft until an authorised
person permits the vessel or aircraft to leave;
arrange for goods being carried on the vessel or aircraft to be unloaded;
ensure that the goods being carried on the vessel or aircraft are not unloaded until an
authorised person permits their unloading.
108. Subsection 47(4) would clarify that an authorised person may communicate a
requirement under new section 47 by means of an international signal code or any other
internationally recognised means of communication with a vessel or aircraft (as the case
may be).
109. Subsections 47(5) and (7) would have the combined effect that a person who fails to
comply with a requirement under new section 47 will commit a strict liability offence.
The maximum penalty for the strict liability offence would be 30 penalty units.
110. Strict liability is proposed for this offence having regard to the Commonwealth Guide
to Framing Offences and the Scrutiny of Bills Committee 6th Report. Consistent with
these documents, strict liability is appropriate as:
the offence is not punishable by imprisonment;
the offence is subject to a maximum penalty unit of 30 penalty units for an
individual;
25
the actions which trigger the offence are simple, readily understood and easily
defended. The offence is triggered if a person who is required comply with a
requirement in section 47 fails to do so;
it is necessary to ensure the integrity of the regulatory regime;
the offence would be subject to an infringement notice (see new section 56AB, as
inserted by Schedule 2 to the Bill);
the absence of strict liability may adversely affect the capacity to prosecute
offenders. Whether or not a defendant intentionally or negligently did not comply
with a requirement given by an authorised person under this section is a matter
peculiarly within the knowledge of the defendant alone. Proving the contrary
beyond reasonable doubt would require significant and difficult to obtain indirect
and circumstantial evidence;
if an aircraft or vessel is suspected of containing hazardous waste that is proposed
to be, or that has been, imported or exported, it is imperative that such goods are
able to be inspected for compliance with the Act. Ensuring that the import and
export of hazardous waste have been appropriately assessed under the Act is a
necessary part of ensuring that the Act remains an effective and efficient
mechanism to both implement Australia's obligations under the Basel Convention
and to realise its intended environmental benefits. Import or export proposals that
have not been assessed may, if undertaken, result in significant environmental
harm and could damage Australia's international relations;
the person affected would be placed on notice to guard against the possibility of
contravention, which is likely to significantly enhance the effectiveness of the
enforcement regime in deterring the conduct in question.
111. The defence of honest and reasonable mistake of fact is available for strict liability
offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence
of strict liability does not make any other defence unavailable (see subsection 6.1(3) of
Schedule 1 to the Criminal Code).
112. New subsection 47(8) establishes a mirror civil penalty provision which would be
contravened in circumstances where a person is subject to a requirement under new
section 47 and does not comply with that requirement. The maximum penalty is 240
penalty units.
113. The combination of a strict liability offence and civil penalty provision would provide
an adequate deterrent from failing to comply with a requirement under section 47, which
could undermine the compliance and enforcement mechanisms in the Act. It is also
appropriate to include both civil and criminal penalties in order to provide flexibility for
the Commonwealth to enforce the prohibition appropriately without always needing to
26
pursue criminal penalties (noting that conviction for a criminal offence carries with it a
range of consequences beyond the immediate penalty).
114. Subsection 47(6) would clarify that it is a defence to both the strict liability offence
and civil penalty provision if complying with the requirement would have endangered the
person or any other person. The note after subsection 47(6) would explain that the
defendant bears an evidential burden in relation to showing that complying with the
requirement would have endangered the person or any other person. This is because
section 13.3 of Schedule 1 to the Criminal Code and section 96 of the Regulatory Powers
Act provide that if a defendant wishes to rely on an exception to, respectively, an offence
or a civil penalty provision, the defendant bears an evidential burden of proof in relation
to that matter. This is appropriate on the basis that knowledge of that matter would be
peculiar to that person. Consistent with this, it is appropriate to reverse the evidential
burden of proof in this matter, as the reason why a person has not complied with a
requirement in section 47 (including whether complying with the requirement would have
endangered the person or any other person) is a matter that is peculiarly within the
knowledge of that person.
Section 48 - Additional monitoring and investigation powers - production of permits and
orders for import or export
115. New section 48 would provide for an additional monitoring and investigation power
(for the purposes of Parts 2 and 3 of the Regulatory Powers Act) that replicates the
content of existing section 52 of the Act. Section 52 of the Act would be repealed by item
19 of this Schedule.
116. New section 48 would apply if an authorised person has reasonable grounds for
suspecting that a person intends to import or export hazardous waste, is importing or
exporting hazardous waste, or has imported or exported hazardous waste. In such
circumstances, the authorised person may require the person to produce, or to produce
evidence of the existence and contents of, a Basel permit or special permit authorising the
import or export, or a ministerial order made under section 34, 35, 35A or 38 authorising
or requiring the import or export (subsection 48(2)).
117. New subsections 48(3) and (4) would have the combined effect that a person will
commit a strict liability offence if the person is subject to a requirement under subsection
48(2) to produce, or to produce evidence and content of, a Basel or special permit or a
ministerial order, and the person fails to comply with the requirement. The maximum
penalty for the offence is 30 penalty units for individuals or 150 penalty units for a body
corporate (using the body corporate multiplier rule at subsection 4B(3) of the Crimes
Act). This prohibition is not intended to override the privilege against self-incrimination.
118. Strict liability is proposed for this offence having regard to the Commonwealth Guide
to Framing Offences and the Scrutiny of Bills Committee 6th Report. Consistent with
these documents, strict liability is appropriate as:
the offence is not punishable by imprisonment;
27
the offence is subject to a maximum penalty unit of 30 penalty units for an
individual;
the actions which trigger the offence are simple, readily understood and easily
defended. The offence is triggered if a person who is required to produce, or to
produce evidence and content of, a Basel or special permit, or a ministerial order,
and fails to do so;
it is necessary to ensure the integrity of the regulatory regime;
the offence would be subject to an infringement notice (see new section 56AB, as
inserted by Schedule 2 to the Bill);
the absence of strict liability may adversely affect the capacity to prosecute
offenders. Whether or not a defendant intentionally or negligently did not comply
with a requirement to produce a relevant permit or order is a matter peculiarly
within the knowledge of the defendant alone. Proving the contrary beyond
reasonable doubt would require significant and difficult to obtain indirect and
circumstantial evidence;
ensuring that the import and export of hazardous waste have been appropriately
assessed under the Act is a necessary part of ensuring that the Act remains an
effective and efficient mechanism to both implement Australia's obligations under
the Basel Convention and to realise its intended environmental benefits. Import or
export proposals that have not been assessed may, if undertaken, result in
significant environmental harm and could damage Australia's international
relations;
the person affected would be placed on notice to guard against the possibility of
contravention, which is likely to significantly enhance the effectiveness of the
enforcement regime in deterring the conduct in question.
119. The defence of honest and reasonable mistake of fact is available for strict liability
offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence
of strict liability does not make any other defence unavailable (see subsection 6.1(3) of
Schedule 1 to the Criminal Code).
120. New subsection 48(5) establishes a mirror civil penalty provision which would be
contravened in circumstances where a person is subject to a requirement under subsection
48(2) and does not comply with that requirement. The maximum penalty is 240 penalty
units.
121. The combination of a strict liability offence and civil penalty provision would provide
an adequate deterrent from failing to comply with a requirement to produce, or produce
evidence of the existence and contents of, a Basel or special permit ministerial order
28
authorising or requiring the import or export, which could undermine the compliance and
enforcement mechanisms in the Act. It is also appropriate to include both civil and
criminal penalties in order to provide flexibility for the Commonwealth to enforce the
prohibition appropriately without always needing to pursue criminal penalties (noting that
conviction for a criminal offence carries with it a range of consequences beyond the
immediate penalty).
Section 49 - Additional monitoring and investigation powers - production of transit permits
122. New section 49 would provide for an additional monitoring and investigation power
(for the purposes of Parts 2 and 3 of the Regulatory Powers Act) that replicates the
content of existing section 52A of the Act. Section 52A of the Act would be repealed by
item 19 of this Schedule.
123. New section 49 would apply if an authorised person has reasonable grounds for
suspecting that a person intends to carry out a transit proposal, is carrying out a transit
proposal or has carried out a transit proposal. In such circumstances, the authorised
person may require the person to produce, or to produce evidence of the existence and
contents of:
a transit permit authorising the carrying out of the transit proposal; or
a notification given under subsection 33G(1) that the person does not require a
transit permit for the transit proposal (subsection 49(2)).
124. New subsections 49(3) and (4) would have the combined effect that a person will
commit a strict liability offence if the person is subject to a requirement under subsection
49(2) to produce, or to produce evidence of the existence and contents of, a transit permit
or notification, and the person fails to comply with the requirement. The maximum
penalty for the offence is 30 penalty units for individuals or 150 penalty units for a body
corporate (using the body corporate multiplier rule at subsection 4B(3) of the Crimes
Act). This prohibition is not intended to override the privilege against self-incrimination.
125. Strict liability is proposed for this offence having regard to the Commonwealth Guide
to Framing Offences and the Scrutiny of Bills Committee 6th Report. Consistent with
these documents, strict liability is appropriate as:
the offence is not punishable by imprisonment;
the offence is subject to a maximum penalty unit of 30 penalty units for an
individual;
the actions which trigger the offence are simple, readily understood and easily
defended. The offence is triggered if a person who is required to produce, or to
produce evidence and content of, a transit permit or notification, fails to do so;
it is necessary to ensure the integrity of the regulatory regime;
29
the offence would be subject to an infringement notice (see new section 56AB, as
inserted by Schedule 2 to the Bill);
the absence of strict liability may adversely affect the capacity to prosecute
offenders. Whether or not a defendant intentionally or negligently did not comply
with a requirement to produce, or to produce evidence and content of, a transit
permit or notification is a matter peculiarly within the knowledge of the defendant
alone. Proving the contrary beyond reasonable doubt would require significant
and difficult to obtain indirect and circumstantial evidence;
ensuring transit proposals of hazardous waste have been appropriately assessed
under the Act is a necessary part of ensuring that the Act remains an effective and
efficient mechanism to both implement Australia's obligations under the Basel
Convention and to realise its intended environmental benefits. Transit proposals
that have not been assessed may result in significant environmental harm and
could damage Australia's international relations;
the person affected would be placed on notice to guard against the possibility of
contravention, which is likely to significantly enhance the effectiveness of the
enforcement regime in deterring the conduct in question.
126. The defence of honest and reasonable mistake of fact is available for strict liability
offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence
of strict liability does not make any other defence unavailable (see subsection 6.1(3) of
Schedule 1 to the Criminal Code).
127. New subsection 49(5) would establish a mirror civil penalty provision which would
be contravened in circumstances where a person is subject to a requirement under
subsection 49(2) and does not comply with that requirement. The maximum penalty is
240 penalty units.
128. The combination of a strict liability offence and civil penalty provision would provide
an adequate deterrent for failing to comply with a requirement to produce, or produce
evidence of the existence and contents of, a transit permit or notification, which could
undermine the compliance and enforcement mechanisms in the Act. It is also appropriate
to include both civil and criminal penalties in order to provide flexibility for the
Commonwealth to enforce the prohibition appropriately without always needing to pursue
criminal penalties (noting that conviction for a criminal offence carries with it a range of
consequences beyond the immediate penalty).
Subdivision B - Audit Powers
129. New sections 50, 51, 52, 53, 54 and 55 would allow inspectors to conduct audits in
relation to import, export and transit proposals, ministerial orders made under Part 3 of
the Act and other prescribed activities. Auditing will be an important compliance tool to
30
assess a person's compliance with, among other things, permit and record-keeping
requirements under the Act.
Section 50 - Audits
130. New section 50 would provide for audits to be undertaken by inspectors.
131. Subsection 50(1) would set out the scope of audits that may be undertaken under the
Act. The Secretary would be able to, in writing, require an audit to be conducted of any of
the following:
operations purportedly covered by an import proposal that is or was covered by an
import permit;
operations purportedly covered by an export proposal that is or was covered by an
export permit;
operations purportedly covered by a transit proposal that is or was covered by a transit
permit;
operations that are or were covered by a ministerial order made under Part 3;
operations that are or were purportedly covered by a notification under subsection
33G(1) (concerning exemptions from the requirement to obtain a transit permit for
certain movements of hazardous waste between OECD countries for recovery
operations);
operations that are or were carried out, or proposed to be carried out, in any other
circumstances prescribed by the regulations.
132. Subsection 50(2) would set out the matters to which an audit under new section 50
may relate. These are:
whether the operations are covered by a permit, order or notification as required;
whether the operations are complying with, have complied with, or will comply with
the permit, order or notification (including any permit conditions);
whether the operations are complying with, have complied with, or will comply with
the Act, or any requirement made under the Act;
for audits relating to notifications - whether the operations would likely result in the
Minister still being satisfied of the criteria in subsection 33G(1) (concerning
exemptions from the requirement to obtain a transit permit for certain movements of
hazardous waste between OECD countries for recovery operations);
31
whether the operations are complying, have complied with, or will comply with, any
other matters relating to the operation of the Act that is prescribed by the regulations.
133. Subsection 50(3) would make it clear that an audit may deal with anything that is
reasonably necessary for the effective conduct of the audit, or anything that is incidental
to the matter to which the audit relates.
134. Subsection 50(4) would require an audit to be conducted by an inspector. An
inspector is a person appointed under section 42 of the Act.
Section 51 - Single audit or program of audits may be required
135. New section 51 would clarify that the Secretary may require a single audit or a
program of audits in relation to a specified matter. This would provide flexibility to assist
with ongoing compliance matters.
136. A note following new section 51 would inform readers that, if the Secretary has
required a program of audits to be conducted in relation to a matter, the Secretary may
also require additional audits to be conducted in relation to the matter. It would direct
readers to subsection 33(1) of the Acts Interpretation Act.
Section 52 - Relevant person for an audit
137. New section 52 would set out who is the relevant person for an audit. This will be
relevant to new sections 53 (conduct of the audit) and 54 (relevant person must provide
the auditor (an inspector) with assistance that is reasonably necessary for the conduct of
the audit).
138. The relevant person would be:
for audits relating to a permit - the holder of the permit;
for audits of operations relating to a ministerial order - the person who is the subject
of the order;
for audits of operations relating to a notification under subsection 33G(1) (concerning
transit proposals between OECD countries for recovery operations that do not require
a permit) - the person notified;
for audits of operations prescribed by the regulations - the person who proposed to
carry out, is carrying out, or has carried out, the operations.
Section 53 - Conduct of audit
139. New subsection 53 would set out the requirements for the conduct of an audit.
140. Subsection 53(1) would permit the Secretary to require an audit without notice.
Surprise audits are an important tool to assess compliance with the Act.
32
141. Subsection 53(2) would require an auditor (an inspector), before starting to conduct
an audit, to give the relevant person for the audit a description of the scope of the audit.
142. Subsection 53(3) would allow the regulations to make provision for and in relation to
other matters relating to the conduct of an audit, and the process to be followed after an
audit has been completed.
143. Subsection 53(4) would provide a non-exhaustive list of matters that may be covered
under regulations made for the purpose of subsection 53(3). These matters are:
information that must be provided to the relevant person for the audit before the audit,
during the audit or after the audit is completed; and
requirements for, and in relation to, reports to be provided in relation to an audit.
Section 54 - Relevant person for an audit must provide assistance
144. New section 54 would require the relevant person for an audit to provide the auditor
(an inspector) with assistance that is reasonably necessary for the conduct of the audit.
This is necessary to ensure that the audit is able to be conducted efficiently and
effectively.
145. The relevant person for an audit would be defined in new section 52.
146. Subsection 54(2) would clarify that, without limiting subsection 54(1), providing
assistance that is reasonably necessary includes complying with any request under new
subsection 55(1) for the audit. It is not, however, intended that this requirement should
override the common law privilege against self-incrimination.
147. Failure to comply with the requirement to provide the auditor with assistance that is
reasonably necessary for the conduct of the audit would be a ground to revoke the
person's permit (or the notification given under subsection 33G(1) that the person does
not require a permit). This is reflected in the note after section 54. It would also be a
reason to refuse to grant a permit or notification to the person in the future (see
amendments made by items 13 and 14 of this Schedule.
Section 55 - Powers of auditors
148. New section 55 would set out the powers of auditors (who must be an inspector)
under the Act.
149. Subsection 55(1) would have the effect that an auditor may request a person who the
auditor reasonably believes has information or documents that are relevant to the audit to
answer questions, provide information in writing or produce the documents. It is not,
however, intended that this requirement should override the common law privilege
against self-incrimination.
33
150. The note following subsection 55(1) would explain that a person may commit an
offence or be liable for a civil penalty if the person provides false or misleading
information (see sections 137.1 and 137.2 of the Criminal Code).
151. Subsection 55(2) would clarify that the auditor has the power to make copies of, or
take extracts from, a document or record produced in an audit.
Item 19
152. Item 19 would amend the Act to repeal sections 43 to 56. These provisions are no
longer needed because their content would be covered by the Regulatory Powers Act
provisions and modifications described above. The comparison table provided above
identifies the corresponding provisions of the Regulatory Powers Act for the provisions of
the Act that are repealed by this item.
Item 20
153. Item 20 would amend the Act to insert a new Part 5AA (sections 56AA, 56AB, 56AC
and 56AD). New Part 5AA would provide for enforcement powers by triggering Parts 4
(civil penalty provisions), 5 (infringement notices), 6 (enforceable undertakings) and 7
(injunctions) of the Regulatory Powers Act. This would provide a comprehensive
enforcement regime for the Act.
Division 1 - Civil penalty provisions
Section 56AA - Civil penalty provisions
154. New section 56AA would trigger the standard provisions of Part 4 of the Regulatory
Powers Act.
155. Part 4 of the Regulatory Powers Act creates a framework for allowing the civil
penalty provisions of the Act to be enforced by obtaining an order for a person to pay a
pecuniary penalty. This would be explained by the note following new subsection
56AA(1).
156. New subsection 56AA(2) would provide that the Secretary is the authorised applicant
for the purposes of Part 4 of the Regulatory Powers Act. This means it is the Secretary
who would be able to apply to a court for an order for a person to pay a civil penalty in
relation to a contravention of the Act.
157. New subsection 56AA(3) would provide that the Court is a relevant court in relation
to the civil penalty provisions of this Act. The Court is defined in section 4 of the Act as
the Federal Court of Australia.
Division 2 - Infringement Notices
Section 56AB - Infringement notices
158. New section 56AB would trigger the standard provisions of Part 5 of the Regulatory
Powers Act.
34
159. Part 5 of the Regulatory Powers Act creates a framework under which infringement
notices can be issued for specified contraventions against the Act. This would be
explained by the note following new subsection 56AB(1). Infringement notices are
appropriate to provide an alternative means of managing high-volume, low-penalty
contraventions. They do not constitute more than an allegation of contravention and
provide an administrative means of disposing of a matter.
160. New subsection 56AB(1) would provide that all strict liability offences in the Act
would be subject to the infringement notice scheme in Part 5 of the Regulatory Powers
Act. Strict liability offences are appropriate to have an infringement notice scheme
attached as they do not contain proof of a fault element or state of mind.
161. A person who is given an infringement notice may choose to pay an amount as an
alternative to having court proceedings brought against them for contravention against the
Act. The infringement notice amount is one fifth of the maximum penalty for the
contravention.
162. New subsection 56AB(2) would provide that an inspector is the infringement officer
for the purposes of Part 5 of the Regulatory Powers Act.
163. New subsection 56AB(3) would provide that the Secretary is the relevant chief
executive for the purposes of Part 5 of the Regulatory Powers Act.
Division 3 - Enforceable undertakings
Section 56AC - Enforceable undertakings
164. New section 56AC would trigger the standard provisions of Part 6 of the Regulatory
Powers Act for all provisions of the Act.
165. Triggering Part 6 of the Regulatory Powers Act would allow an enforceable
undertaking to be sought, agreed to, and enforced in relation to provisions of the Act. This
would be explained by the note following new subsection 56AC(1). An enforceable
undertaking is a written undertaking agreed to by a person to, for example, take a
specified action, that can be enforced in the relevant court.
166. New subsection 56AC(2) would provide that the Secretary is the authorised person for
the purposes of Part 6 of the Regulatory Powers Act. This means it is the Secretary who
can seek an enforceable undertaking under Part 6 in relation to a provision of the Act.
167. New subsection 56AC(3) would provide that the Court is a relevant court in relation
to the provisions of the Act that are subject to Part 6 of the Regulatory Powers Act (being
all provisions of the Act). The Court is defined in section 4 of the Act as the Federal
Court of Australia.
35
Division 4 - Injunctions
Section 56AD - Injunctions
168. New section 56AD would trigger the standard provisions of Part 7 of the Regulatory
Powers Act for all provisions of the Act.
169. Triggering Part 7 of the Regulatory Powers Act would allow an injunction to be
sought to enforce the provisions of the Act. This would be explained by the note
following new subsection 56AD(1). An injunction (including an interim injunction) is a
court order that may be used to restrain a person from contravening a provision of the Act
or to compel compliance with a provision of the Act.
170. New subsections 56AD(2) to (6) would set out who is an authorised person for the
purposes of Part 7 of the Regulatory Powers Act. An authorised person can seek an
injunction under Part 7 in relation to a provision of the Act.
171. Under new subsection 56AD(2), the Secretary is an authorised person for the
purposes of Part 7 of the Regulatory Powers Act for all the provisions of the Act. This
means the Secretary can seek an injunction from the Court in relation to any provision of
the Act.
172. New subsection 56AD(2) to (6) would have the effect that certain other persons are
also authorised persons for the purposes of Part 7 of the Regulatory Powers Act - but
only in relation to conduct or proposed conduct in contravention of the Act, or a refusal or
failure to do a thing that was, is or would be a contravention of a provision of the Act.
Such persons are:
persons whose interests have, are or will be affected by the conduct, proposed
conduct, refusal or failure; or
persons who meet the criteria set out in subsections (4), (5) or (6). These persons are
Australian citizens, corporations, or unincorporated associations or organisations that
have demonstrated an interest in activities broadly related to hazardous waste and the
protection of human beings and the environment in the 2 years immediately prior to
applying for the injunction. Such persons broadly correspond to the persons who have
standing to seek judicial review of decisions under the Act because of section 58A.
Allowing such persons to seek an injunction in relation to a contravention of the Act
is consistent with the Act's existing provision for extended standing.
173. New subsection 56AD(7) is a consequential amendment to subsections 56AD(6). It
would have the effect of modifying subsections 119(1) and (2) of the Regulatory Powers
Act so that a reference to a 'person' in those provisions includes a reference to an
unincorporated association or organisation. This is necessary because unincorporated
associations and organisations are not legal persons.
36
174. New subsection 56AD(8) would clarify that the hazardous waste-related activities
referred to in subsections (4), (5) or (6) must have either been carried on within
Australian jurisdiction, or relate to the effects of hazardous waste of Australian origin on
human beings or the environment outside Australian jurisdiction.
175. New subsection 56AD(9) would clarify that, for the purposes of interpreting the term
hazardous waste in subsections 56AD(4), (5) or (6), sections 4A, 4F or 4G should be
ignored. Sections 4A, 4F and 4G allow the definition of hazardous waste to be extended
in certain circumstances, such as where a waste is classified as a hazardous waste by a
foreign country.
176. New subsection 56AD(10) would provide that the Court is a relevant court in relation
to the provisions of the Act that are subject to Part 7 of the Regulatory Powers Act (being
all provisions of the Act). The Court is defined in section 4 of the Act as the Federal
Court of Australia
177. New subsections 56AD(11) and (12) would have the combined effect of modifying
paragraphs 124(1)(c) and 124(2)(c) of the Regulatory Powers Act so that the power of a
relevant court to grant a restraining or performance injunction may be exercised whether
or not there is a significant risk of injury or damage to an individual or the environment if
the person engages in conduct of that kind (for restraining injunctions) or if the person
refuses or fails to do the thing (for performance injunctions). This modification is
necessary to ensure that the injunction powers in the existing Act are not lost or reduced.
Items 21
178. Item 21 would amend subsection 59(1) to omit "an offence against this Act" and
substitute with "a designated offence" to better reflect current drafting practices. The
definition of a designated offence would be inserted by item 35.
Item 22
179. Item 22 would amend subsection 59(1) to omit "particular conduct" and substitute "a
particular act or omission" to better reflect current drafting practices.
Item 23
180. Item 23 would amend paragraph 59(1)(a) to omit "conduct was engaged in" and
substitute "act or omission was done" to better reflect current drafting practices.
Item 24
181. Item 24 would amend subsection 59(2) to omit "Any conduct engaged in" and
substitute "Any act or omission done" to better reflect current drafting practices.
Item 25
182. Item 25 would amend from subsection 59(2) to omit "an offence against this Act" and
substitute "a designated offence" to better reflect current drafting practices. The definition
of a designated offence would be inserted by item 35.
37
Item 26
183. Item 26 would amend subsection 59(2) to omit "engaged in also" and substitute "done
also" to better reflect current drafting practices.
Item 27
184. Item 27 would amend subsection 59(2) to omit "the conduct" and substitute "the act
or omission" to better reflect current drafting practices.
Item 28
185. Item 28 would amend subsection 59(3) to omit "an offence against this Act" and
substitute "a designated offence" to better reflect current drafting practices. The definition
of a designated offence would be inserted by item 35.
Item 29
186. Item 29 would amend subsection 59(3) to omit "particular conduct" and substitute "a
particular act or omission" to better reflect current drafting practices.
Item 30
187. Item 30 would amend paragraph 59(3)(a) to omit "conduct was engaged in" and
substitute "act or omission was done" to better reflect current drafting practices.
Item 31
188. Item 31 would amend subsection 59(4) to omit "Any conduct engaged in" and
substitute "Any act or omission done" to better reflect current drafting practices.
Item 32
189. Item 32 would amend subsection 59(4) to omit "an offence against this Act" and
substitute "a designated offence" to better reflect current drafting practices. The definition
of a designated offence would be inserted by item 35.
Item 33
190. Item 33 would amend subsection 59(4) to omit "engaged in also" and substitute "done
also" to better reflect current drafting practices.
Item 34
191. Item 34 would amend subsection 59(4) to omit "the conduct" and substitute "the act
or omission" to better reflect current drafting practices.
Item 35
192. Item 35 would amend subsection 59(8) by repealing and substituting that subsection
with a definition of designated offence. This item is necessary as a consequence of items
21, 25, 28 and 32 which use the term designated offence.
193. This item would define designated offence as one or more of the following:
38
an offence against the Act;
an offence against section 6 of the Crimes Act to the extent that it relates to an offence
against this Act; and
an offence against section 11.1, 11.4 or 11.5 of the Criminal Code to the extent that it
relates to an offence against this Act.
Item 36
194. Item 36 would amend the Act to insert a new section 60A. New section 60A would
allow the Secretary to delegate their functions or powers under the Act, or the Regulatory
Powers Act to the extent that it applies to the Act, to a Senior Executive Service
employee (SES), or acting SES employee, in the Department.
195. This power is necessary because the Bill would amend the Act to vest powers in the
Secretary for the first time (the existing Act only vests powers in the Minister). The
powers that would be vested in the Secretary, rather than the Minister, relate to
compliance and enforcement matters. For this reason, it is appropriate that delegation be
limited to the Departmental officials at, or acting at, SES level.
196. In performing functions or exercising powers, delegates must comply with any
directions of the Secretary to ensure that powers exercised by delegates are exercised
appropriately and consistently (new subsection 60A(3)).
197. As an additional safeguard to ensure the appropriate and reasonable use of
delegations, the giving of delegations and the exercise of delegated powers are also
subject to fraud control procedures, risk management processes and other protocols.
These are designed to ensure delegated decision-making is made at the appropriate level
and in a transparent and accountable manner.
Part 2 - Application and saving provisions
Item 37
198. Item 37 would set out a number of definitions for terms that are used in items 38 to
41.
Item 38
199. Item 38 is an application provision that would have the effect that identity cards that
were issued under section 43 of the Act and are in force immediately before the
commencement of the Bill, continue in force after the Bill commences and are taken to be
an identity card issued under section 35 or 76 of the Regulatory Powers Act.
Item 39
200. Item 39 is an application provision that relates to the monitoring and enforcement
powers in Parts 2 and 3 of the Regulatory Powers Act.
39
201. Sub-items 39(1) and 39(2) would have the combined effect that:
the monitoring and investigation powers under the Regulatory Powers Act triggered
by new sections 43 and 45 (see amendments made by item 18 of this Schedule); and
the additional monitoring powers and investigation powers listed in new sections 44
and 46 (see amendments made by item 18 of this Schedule);
will be able to be used to monitor compliance with the Act, determine whether
information given in compliance (or purported compliance) with the Act is correct, and
investigate suspected contraventions of the Act that occurred before, on or after the
commencement of the Bill.
202. Sub-item 39(3) would have the effect that Part 5 of the Act (other than sections 45, 52
and 52A) as it was immediately before the commencement of the Bill, continues to apply
on and after that date in respect of:
applications for warrants that were made but not decided before that date;
warrants issued (or completed and signed) as a result of applications that were made
before that date;
powers exercised, rights created, duties imposed, and things seized before that date as
a result of entering or boarding a searchable place with consent or under a warrant
issued under Part 5.
203. The note following sub-item 39(3) refers the reader to section 7 of the Acts
Interpretation Act in respect of the continued obligation to comply with a requirement
made under subsection 45(2) or (3), 52(2) or 52A(2) that was made before the
commencement of the Bill. This means that a request made under those sections before
they are repealed, that has not been complied with before the relevant section is repealed,
must still be complied with.
Item 40
204. Item 40 is an application provision that would ensure that audits can be undertaken in
respect of permits granted, orders made, and notifications given before, on or after the
commencement of the Bill.
Item 41
205. Item 41 is an application provision that would ensure that:
all injunctions sought on or after the commencement of the Bill would be sought
under Part 7 of the Regulatory Powers Act, as it applies to this Act - whether or not
the relevant contravention occurs before, on or after that date; and
40
any injunction application made prior to the commencement of the Bill and that has
not been decided by that date, will continue to be assessed under section 41 of the
Act, as it was immediately before that date.
SCHEDULE 3 - RECORD KEEPING, INFORMATION AND CONFIDENTIALITY
General outline
206. Schedule 3 of the Bill would amend the Act to set out requirements relating to record
keeping, the requirement to produce documents or information in accordance with a
notice, and information sharing. These provisions would assist with compliance and
enforcement under the Act, and with ensuring that information obtained by
Commonwealth officials under the Act will used or disclosed for appropriate authorised
purposes.
Details on the amendments
Part 1 - Amendments
Item 1
207. Item 1 would amend section 4 of the Act (dealing with definitions) to include a
number of key terms that are used in the provisions to be inserted by this Schedule. As the
definition of this Act in section 4 of the Act includes the regulations, the definitions
inserted by this item would also apply to regulations made under the Act.
208. Some key concepts in this Schedule would include entrusted person, relevant
information and protected information.
209. An entrusted person would be defined as the Minister, the Secretary, an APS
employee of the Department or any other person employed in or engaged by the
Department. The concept of an entrusted person is relevant to the information sharing
provisions to be inserted by Schedule 3, as only an entrusted person will be able to use or
disclose protected information under, or for the purposes of, the Act.
210. Relevant information would be defined as information obtained by an entrusted
person under, or in accordance with, the Act or the Regulatory Powers Act as it applies to
the Act. This concept relates to the list of authorised uses and disclosures that would be
included in the amendments made by item 2 of this Schedule (see new section 41G to
41U). The intention of defining relevant information broadly is to provide, for both
officials and industry, certainty on the purposes for which that information, once
collected, may be used or disclosed under the Act. It also means the Minister would not
be required to make an assessment as to the commercial sensitivity of information
collected under the Act, where he or she may not be in an appropriate position to do.
211. Protected information would be a subset of relevant information. Protected
information would be defined as information obtained by an entrusted person the
disclosure of which could reasonably be expected to:
41
found an action by a person other than the Commonwealth for a breach of a duty of
confidence;
prejudice the effective working of government;
prejudice the prevention, detection, investigation, prosecution or punishment of one or
more offences;
endanger a person's life or physical safety;
prejudice the protection of public safety or the environment.
212. The term protected information is relevant to the secrecy provision that would be
included in the amendments made by item 2 of this Schedule (see new sections 41V and
41W). Use or disclosure of protected information without authorisation under the Act,
another Commonwealth law, or a prescribed State or Territory law would be both an
offence and breach of a civil penalty provision.
Item 2
213. Item 2 would insert a new Part 4B into the Act, after Part 4A of the Act. The new Part
4B would set out requirements relating to record keeping, the requirement to give
information or produce documents in accordance with a notice, and information sharing
requirements.
Division 1 - Record keeping and information gathering
214. Division 1 of Part 4B, as inserted by item 2 of Schedule 3, would include new
sections 41D, 41E and 41F, which deal with record keeping and information gathering
under the Act.
215. The making and retaining of records is an important compliance mechanism to ensure
that those who are regulated under the Act are held accountable for their acts or
omissions. Records kept pursuant to requirements under the Act could be assessed
through other compliance tools, such as audits or regulatory monitoring.
216. Similarly, information gathering powers such as the power to require a person to
produce information or documents for the purposes of investigating a suspected
contravention of the Act is an important mechanism to ensure non-compliance with the
Act is dealt with appropriately.
Section 41D - Requirement to make and retain records
217. New subsection 41D(1) would allow the regulations to make provision for and in
relation to requiring records to be made and retained by the following persons:
a person who holds an import permit, export permit or transit permit under the
Act. This would include both the holders of Basel permits granted under the Act,
42
and the holders of special permits granted under a set of Article 11 regulations
(such as the OECD Regulations);
a person who has been notified under the new subsection 33G(1) of the Act (as
inserted by Schedule 4 to the Bill) that a transit permit is not required for carrying
out a transit proposal. Transit proposals for which a notification may be given
under new subsection 33G(1) can only relate to the transboundary movement of
hazardous waste between OECD countries for recovery operations, consistent
with the OECD Decision;
A person who has been given a ministerial order under new Part 3 of the Act (as
inserted by Schedule 4 to the Bill).
218. New subsection 41D(2) would provide a non-exhaustive list of matters that
regulations made for the purposes of subsection 41D(1) may cover, including:
the kind of records that must be made and retained;
the form in which records must be retained;
the period for which records must be retained.
219. As this list is not intended to be exhaustive, the Governor-General may also make
regulations for the purposes of new subsection 41D(1) on other relevant matters
concerning the making and retaining of records.
220. Providing the details of record-keeping requirements in regulations rather than the
Bill would allow flexibility to prescribe specific record-keeping requirements for different
regulatory regimes. For example, a permit holder may need to keep records relating to
how they are complying with their permit, while the recipient of a notification under new
subsection 33G(1) may need to keep records about matters that go to whether the
notification should be revoked, such as whether the proposal is likely to cause significant
harm to the environment. It is anticipated that most records required to be kept will be of
the type that are likely to be made or retained in the normal course of business for those
required to make and retain records, to minimise the imposition of additional regulatory
obligations on industry.
221. It is also intended that any regulations made for the purposes of section 41D would be
sufficiently flexible to allow the required records to be kept in a variety of forms and
specific requirements to be updated with changes in technology.
222. New subsections 41D(3) and (4) would have the combined effect that a person will
commit a strict liability offence if the person is required to make and retain records under
regulations made for the purposes of subsection 41D(1), and the person fails to comply
with the requirement. The maximum penalty for the offence is 30 penalty units for
43
individuals or 150 penalty units for a body corporate (using the body corporate multiplier
rule at subsection 4B(3) of the Crimes Act).
223. Strict liability is proposed for this offence having regard to the Commonwealth Guide
to Framing Offences and the Scrutiny of Bills Committee 6th Report. Consistent with
these documents, strict liability is appropriate as:
the offence is not punishable by imprisonment;
the offence is subject to a maximum penalty unit of 30 penalty units for an
individual;
the actions which trigger the offence are simple, readily understood and easily
defended. The offence is triggered if a person who is required to make or keep a
record fails to do so. The regulations that would specify the record-keeping
requirements will be a legislative instrument for the purposes of the Legislation
Act and therefore available on the Federal Register of Legislation. The regulations
would also be subject to Parliamentary scrutiny and disallowance processes
through the ordinary operation of the Legislation Act;
it is necessary to ensure the integrity of the regulatory regime;
the offence would be subject to an infringement notice (see new section 56AB, as
inserted by Schedule 2 to the Bill);
the absence of strict liability may adversely affect the capacity to prosecute
offenders. Whether or not a defendant intentionally or negligently did not comply
with record keeping requirements is a matter peculiarly within the knowledge of
the defendant alone. Proving the contrary beyond reasonable doubt would require
significant and difficult to obtain indirect and circumstantial evidence.
224. The defence of honest and reasonable mistake of fact is available for strict liability
offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence
of strict liability does not make any other defence unavailable (see subsection 6.1(3) of
Schedule 1 to the Criminal Code).
225. New subsection 41D(5) would establish a mirror civil penalty provision which would
be contravened in circumstances where a person is subject to record keeping requirements
under the regulations and does not comply with those requirements. The maximum
penalty is 240 penalty units.
226. The combination of a strict liability offence and civil penalty provision would provide
an adequate deterrent from failing to comply with record-keeping requirements, which
could undermine the compliance and enforcement mechanisms in the Act. It is also
appropriate to include both civil and criminal penalties in order to provide flexibility for
the Commonwealth to enforce the prohibition appropriately without always needing to
44
pursue criminal penalties (noting that conviction for a criminal offence carries with it a
range of consequences beyond the immediate penalty).
Section 41E - Requirement to give information or produce documents
227. New section 41E would allow the Secretary, by written notice, to require a person to
give a specified inspector or entrusted person specified documents or information.
228. The Secretary would only be able to exercise the power in section 41E to give a notice
to a person if the criteria are met:
the notice must be given for the purpose of investigating or preventing a
contravention of the Act; and
the Secretary must reasonably believe that the person is capable of giving the
specified information or documents.
229. A notice given under section 41E must relate to particular information or documents
that are specified in the notice and must relate to a specific investigation of a
contravention. It would not be able to be used to determine whether a person possessed
incriminating documents, or to ensure that the person's operations were in compliance
with the Act. In such circumstances, it would be appropriate for the Secretary to instead
use the audit powers in the Act (inserted by item 18 of Schedule 2 to this Bill) or the
monitoring or investigation powers under the Regulatory Powers Act (applied to the Act
by item 18 of Schedule 2 to this Bill).
230. The documents or information must be given in the manner and within the timeframe
specified in the notice. Subsection 41E(2) would require the period specified in the notice
must be no less than 14 days after the notice is given. The notice must also set out the
effect of subsection 41E(4) and of sections 137.1 and 137.2 of the Criminal Code
(relating to providing false or misleading information or documents).
231. New subsections 41E(4) and (5) would have the combined effect that a person would
commit a strict liability offence if the person is given a notice under subsection 41E(1)
and the person fails to comply with the notice. The maximum penalty for the offence is
30 penalty units for individuals or 150 penalty units for a body corporate (using the body
corporate multiplier rule at subsection 4B(3) of the Crimes Act).
232. Strict liability is proposed for this offence having regard to the Commonwealth Guide
to Framing Offences and the Scrutiny of Bills Committee 6th Report. Consistent with
these documents, strict liability is appropriate as:
the offence is not punishable by imprisonment;
the offence is subject to a maximum penalty unit of 30 penalty units for an
individual;
45
the actions which trigger the offence are simple, readily understood and easily
defended. The offence is triggered if a person who is given a notice to produce
information or documents fails to do so;
it is necessary to ensure the integrity of the regulatory regime;
the offence would be subject to an infringement notice (see new section 56AB, as
inserted by Schedule 2 to the Bill);
the absence of strict liability may adversely affect the capacity to prosecute
offenders. Whether or not a defendant intentionally or negligently did not comply
with a notice to produce documents or information is a matter peculiarly within
the knowledge of the defendant alone. Proving the contrary beyond reasonable
doubt would require significant and difficult to obtain indirect and circumstantial
evidence.
The defence of honest and reasonable mistake of fact is available for strict liability
offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the
existence of strict liability does not make any other defence unavailable (see
subsection 6.1(3) of Schedule 1 to the Criminal Code).
233. New subsection 41E(6) would establish a mirror civil penalty provision which would
be contravened in circumstances where a person is given a notice under subsection
41E(1) and does not comply with the notice. The maximum penalty is 240 penalty units.
234. The combination of a strict liability offence and civil penalty provision would provide
an adequate deterrent from failing to comply with a notice given under section 41E,
which could undermine the compliance and enforcement mechanisms in the Act. It is also
appropriate to include both civil and criminal penalties in order to provide flexibility for
the Commonwealth to enforce the prohibition appropriately without always needing to
pursue criminal penalties (noting that conviction for a criminal offence carries with it a
range of consequences beyond the immediate penalty).
Section 41F - Self-incrimination
235. New section 41F relates to an individual providing information to the Minister in
response to a notice given under new section 41E, where the information may tend to
incriminate or expose that person to a criminal offence, or to a penalty.
236. Subsection 41F(1) would provide that an individual is not excused from giving
information, or producing a document, under section 41E on the basis that giving that
information might tend to incriminate the individual in relation to an offence.
237. Section 41F therefore has the effect of overriding the common law privilege against
self-incrimination. The intention is to support the compliance and enforcement functions
in the Act and better equip the Commonwealth with powers to ensure that Australia is
able to properly comply with its international obligations under the Basel Convention. It
46
also gives weight to the public and environmental benefit in limiting potential non-
compliance with the Act, given the significant harm to the environment that may result
from the transboundary movement of hazardous waste not being properly regulated.
238. The note to subsection 41F(1) would clarify that a body corporate cannot claim the
privilege against self-incrimination.
239. The abrogation of the privilege against self-incrimination operates alongside
subsection 41F(2), which would prevent the use of potentially self-incriminating
information, or any other information, document or thing obtained as a direct or indirect
consequence of giving the potentially self-incriminating information in all criminal
proceedings except for those in relating to giving false information in the notice under
section 41E. The inclusion of this immunity provision is consistent with the
Commonwealth Guide to Framing Offences, which provides that 'if the privilege against
self-incrimination is overridden; the use of incriminating evidence should be constrained'.
240. Subsection 41F(3) would have the effect that an individual is not excused from giving
information, or producing a document, in response to a notice given under section 41E,
on the basis that at general law, the person would otherwise be able to claim the privilege
against self-exposure to a penalty (other than a penalty for an offence), The note to
subsection 41F(3) clarifies that a body corporate cannot claim the privilege against self-
exposure to a penalty.
241. Penalty privilege is the privilege against self-exposure to a civil or administrative
penalty. It is a common law privilege that applies in the context of judicial proceedings
and may be claimed by an individual to resist compulsion in the course of such
proceedings. Subsection 41F(3) has the effect of overriding that privilege and ensures that
compliance with a notice given under section 41E is mandatory. The privilege of self-
exposure has been overridden to ensure the Commonwealth may access all relevant
information to fully inform an investigation into suspected non-compliance with the Act,
given both the significant harm to the environment that could ensue from such a breach,
and the fact that such non-compliance may result in Australia being in breach of its
international obligations.
Division 2 - Authorised uses and disclosures of relevant information
242. Division 2 would deal with information sharing. It would set out a number of
statutory authorisations for the use and disclosure of relevant information. These
authorisations are divided into authorisations that apply to the Minister only (Subdivision
A) and authorisations that apply to all entrusted persons (Subdivision B).
243. The authorisations are reasonable, necessary and proportionate to because they are
generally directed at the performance of functions and powers under legislation
(including the Act), the enforcement of Australian laws, or are matters of public interest
with a high threshold that must be met in order to rely on them (such as being necessary
to prevent or lessen a serious threat to human health or the environment).
47
244. It is not expected that relevant information would generally include personal
information within the meaning of the Privacy Act. However, should that be the case, the
circumstances set out in new Subdivisions A and B (new sections 41G to 41U) are
intended to constitute an authorisation for the purposes of Australian Privacy Principle
6.2 (see Schedule 1 to the Privacy Act) and other relevant laws including common law
and equitable protections for confidentiality (because the relevant clause will authorise
the use or disclosure of the information by or under an Australian law).
245. Subdivision C contains prohibitions applying to the unauthorised use or disclosure of
the subset of relevant information that is protected information. An entrusted person
would not be able to use or disclose protected information in those circumstances unless
the use or disclosure is authorised by the Act, another Commonwealth law, or a
prescribed State or Territory law.
246. Use or disclosure in accordance with the statutory authorisations in Subdivisions A
and B would therefore be a defence to the prohibitions in Subdivision C.
Subdivision A - Authorised uses and disclosures by Minister
247. Subdivision A lists a number of statutory authorisations for the use or disclosure of
relevant information where the power to use or disclose the information is vested in the
Minister. This includes disclosure to Commonwealth, State or Territory government
bodies, disclosure to law enforcement bodies, and disclosure to reduce a serious risk to
human health or the environment.
248. It is appropriate that the power to disclose relevant information in these circumstances
be vested in the Minister, rather than an entrusted person. This is because these
authorisations either involve:
disclosure for the purpose of other another entity's function or powers; or
involves a matter of public interest with a high bar to satisfy that are only likely to be
applicable in exceptional circumstances.
Section 41G - Disclosure of relevant information to Commonwealth entities
249. New section 41G would authorise the disclosure of relevant information to a
Commonwealth entity if the Minister is satisfied that the disclosure is for the purposes of
assisting the entity to perform its functions or powers.
250. Section 4 of the Act would define a Commonwealth entity as having the same
meaning as in the PGPA Act being a Department of State, a Parliamentary Department, a
listed entity or a body corporate established by a Commonwealth law (see amendments
made by item 1 of this Schedule).
251. For example, the Minister may decide to disclose relevant information to the
Department of Home Affairs if satisfied that the particular information would assist in the
administration of legislation under that portfolio, such as the Customs Act 1901.
48
252. Where relevant information that is also protected information is disclosed to another
Commonwealth entity under new section 41G, new section 41W would have the effect
that the recipient of that information would be prohibited from using that information
other than for the purpose for which it was disclosed (see below). This ensures that
protected information is not misused by officials in the Commonwealth entity to which it
was disclosed.
Section 41H - Disclosure of relevant information to State or Territory government body
253. New section 41H would authorise the Minister to disclose relevant information to
states and territories in certain circumstances.
254. The disclosure would need to be a State or Territory government body. A State or
Territory government body would be defined in section 4 of the Act as a Department of
State, an agency or an authority of a State or Territory (see amendments made by item 1
of Schedule 3).
255. Relevant information would only be able to be disclosed under section 41H if each of
the following conditions are met:
the Minister reasonably believes the disclosure is necessary for the purposes of
performing his or her functions or powers under the Act, or for the purposes of
administrating a State or Territory law;
the relevant State or Territory government body has given an undertaking only to
use or disclose that information consistently with a relevant agreement between
the Commonwealth and the State or Territory;
the Minister is satisfied that the information will only be used or disclosed in
accordance with such an agreement.
256. The purpose of this provision is to ensure that relevant information is able to be
shared with State or Territory governments where it is necessary to do so to in order to
properly perform functions and powers under the Act or under State or Territory law,
while maintaining appropriate protections for that information. It is necessary to provide
such protections via an agreement because of constitutional issues related to imposing
offence provisions on State governments or government officials.
Section 41J - Disclosure for the purposes of law enforcement
257. New section 41J would authorise the disclosure of relevant information by the
Minister to an enforcement body if:
the Minister reasonably believes the disclosure is necessary for the enforcement of
a criminal law or a law imposing a pecuniary penalty (such as a civil penalty
provision), or for the protection of the public revenue; and
49
the relevant enforcement body's functions include that enforcement or protection.
258. An enforcement body, for the purposes of section 41J, would include a
Commonwealth entity, a State or Territory government body, the Australian Federal
Police or State or Territory police force or service (see subsection 41J(2)).
259. It is appropriate that the power to disclose relevant information in these circumstances
be vested in the Minister, rather than an entrusted person. This is because the
authorisation in new section 41J involves a matter of public interest, being the
enforcement of Australian laws.
Section 41K - Disclosure to reduce serious risk to human health
260. New section 41K would authorise the disclosure of relevant information by the
Minister if he or she reasonably believes that the disclosure is necessary to prevent or
lessen a serious risk to human health.
261. It is appropriate that the power to disclose relevant information in these circumstances
be vested in the Minister, rather than an entrusted person. This is because the
authorisation in section 41K involves a matter of public interest with a high bar to satisfy
(the risk must be serious, and there must be a reasonable belief the disclosure is necessary
to prevent or lessen the risk) and is likely to only be applicable in exceptional
circumstances.
Section 41L - Disclosure to reduce serious risk to the environment
262. New section 41L would authorise the disclosure of relevant information by the
Minister if he or she reasonably believes that the disclosure is necessary to prevent or
lessen a serious risk to the environment.
263. It is appropriate that the power to disclose relevant information in these circumstances
be vested in the Minister, rather than an entrusted person. This is because the
authorisation in section 41L involves a matter of public interest with a high bar to satisfy
(the risk must be serious, and there must be a reasonable belief the disclosure is necessary
to prevent or lessen the risk) and is likely to only be applicable in exceptional
circumstances.
Subdivision B - Authorised uses and disclosures by entrusted person
264. Subdivision B lists a number of statutory authorisations for the use or disclosure of
relevant information by an entrusted person. As set out above, an entrusted person would
be defined in section 4 of the Act, and would include the Minister, the Secretary, an APS
employee of the Department and any other person employed or engaged by the
Department.
Section 41M - Disclosure of the purposes of an Act
265. New section 41M would authorise the use or disclosure of relevant information by an
entrusted person for the purposes of:
50
the Act; or
another Act administered by the Minister.
266. The purpose of this authorisation is to allow persons performing, or assisting in the
performance of, powers and functions under the Act, or another Act administered by the
Minister, to use and disclose relevant information as necessary for the performance of
those powers and functions. This would help ensure effective and efficient administration
of the Act or other relevant legislation in the Minister's portfolio.
Section 41N - Publicly available information
267. New section 41N would authorise the disclosure of relevant information by an
entrusted person if the information has already lawfully been made public.
268. This authorisation recognises that there is no justifiable reason to prevent the
disclosure of information that is publicly available and therefore already accessible.
Section 41P - Person to whom information relates
269. New section 41P would authorise the disclosure of relevant information by an
entrusted person to the person to whom the information relates.
270. This authorisation recognises that the interests of the person to whom relevant
information relates will not be adversely affected by disclosure of the information to him
or herself.
Section 41Q - Disclosure with consent
271. New section 41Q would authorise the use or disclosure of relevant information by an
entrusted person if the person to whose affairs the information relates has consented to the
use or disclosure, and provided the use or disclosure is in accordance with the consent
provided.
272. This authorisation recognises that there is no justifiable reason to prevent the use or
disclosure of information where the person concerned consents to the use or disclosure.
Section 41R - Person who provided information
273. New section 41R would authorise the disclosure of relevant information by an
entrusted person to the person who provided the information.
274. This authorisation recognises that there is no justifiable reason to prevent the
disclosure of information to the person who provided it in the first place, as that person
will have already seen the information.
Section 41S - Summaries or statistics
275. New section 41S would authorise the disclosure of summaries of relevant information
or statistics derived from protected information if those summaries or statistics would not
allow the identification of a person.
51
276. This authorisation recognises that summaries and statistics that contain no identifying
information are unlikely to cause harm to any person.
Section 41T - Disclosure to a court, tribunal etc.
277. New section 41T would authorise the disclosure of relevant information by an
entrusted person for the purposes of court proceedings, or proceedings of a tribunal,
authority or person that has the power to require the answering of questions or the
production of documents. Section 41T would also authorise the disclosure of relevant
information by an entrusted person in accordance with a court order, or an order of such a
tribunal, authority or person.
278. This clause is not intended to have the effect of requiring an entrusted person to
disclose relevant information to a court, tribunal, authority or person. Rather, its intent is
to ensure that persons who are required or permitted to provide such information to a
court, or to a tribunal, authority or person with the power to require or request the
information, would not be committing an offence or the contravention of a civil penalty
provision if they do so.
Section 41U - Use for the purposes of disclosure
279. New section 41U is intended to remove any doubt that a person who discloses
relevant information consistently with this Division is not committing an offence or the
contravention of a civil penalty provision (under new sections 41V or 41W) in relation to
the use of the protected information for such purposes.
Subdivision C - Offences
280. Subdivision C would list offences and civil penalty provisions relevant pertaining to
the unauthorised use or disclosure of protected information.
281. As set out above, protected information would be defined in section 4 of the Act and
would be a subset of relevant information where unauthorised use or disclosure of the
information could reasonably be expected to lead to certain damaging consequences to
Australia. As such, it is considered appropriate that the use or disclosure of protected
information be strictly regulated.
282. The prohibition in section 41V would apply to entrusted persons. The prohibition in
section 41W would apply to officials of a Commonwealth entity to whom protected
information was disclosed under section 41G and is intended to ensure that, so far as
possible, protected information is not misused after it leaves the Department.
Section 41V - Unauthorised use or disclosure of protected information - entrusted person
283. New subsection 41V(1) would set out a general prohibition on the use or disclosure of
protected information by a person who is, or has been, an entrusted person and who
obtained the protected information in his or her capacity as an entrusted person.
52
284. New subsection 41V(2) would provide that the prohibition in subsection 41V(1) does
not apply if the use or disclosure is authorised or required by the Act, another law of the
Commonwealth, or a prescribed law of a State or Territory.
285. The note to this subsection would explain that the defendant bears an evidential
burden to show that the use or disclosure of information was authorised. The reversal of
the burden of proof is justified in this instance, as the matter to be proved (that is, that the
use of disclosure of protected information was authorised by a Commonwealth law or a
prescribed State or Territory law) is a matter that would be peculiarly in the knowledge of
the defendant. Further, there would be a number of authorised uses and disclosures set out
in Division 2 of Part 4B of the Act (as inserted by this Schedule) and across
Commonwealth law generally. In the event of a prosecution, it would be significantly
more difficult and costly for the prosecution to disprove all possible circumstances than it
would be for a defendant to establish the existence of one potential circumstance.
Consequently, in order to effectively protect information under new section 41V, it is
reasonable, necessary and proportionate to reverse the burden of proof and limit the right
to the presumption of innocence.
286. The authorised uses and disclosures in the Act would be set out in new sections 41G
to 41U (see above). The authorised uses and disclosures in these clauses are reasonable,
necessary and proportionate, because they are generally directed at the performance of
functions and powers under legislation (including the Act), the enforcement of Australian
laws, or are matters of public interest with a high threshold that must be met in order to
rely on them (such as being necessary to prevent or lessen a serious threat to human
health or the environment).
287. New subsection 41V(3) would have the effect that a person who contravenes the
prohibition in subsection 41V(1), and where the use or disclosure is not authorised or
required by a Commonwealth law or a prescribed State or Territory law, would be
committing a fault-based offence. The maximum penalty for the offence would be 2 years
imprisonment or 180 penalty units, or both.
288. New subsection 41V(4) would have the effect that a person who contravenes the
prohibition in subsection 41V(1), and where the use or disclosure is not authorised or
required by a Commonwealth law or a prescribed State or Territory law, would also be
committing an offence of strict liability with a maximum penalty of 60 penalty units.
289. Strict liability is proposed for this offence having regard to the Commonwealth Guide
to Framing Offences and the Scrutiny of Bills Committee 6th Report. Consistent with
these documents, strict liability is appropriate as:
the offence is not punishable by imprisonment;
the offence is subject to a maximum penalty of 60 penalty units for an individual;
53
the actions which trigger the offence are simple, readily understood and easily
defended. The offence is triggered if an entrusted person uses or discloses
protected information and the use or disclosure is not authorised by a
Commonwealth law or a prescribed State or Territory law;
offences relating to the unauthorised use or disclosure of protected information
need to be dealt with efficiently to ensure industry and community confidence in
the regulatory regime, and to reduce the risk of the potentially damaging
consequences of unauthorised use or disclosure of protected information;
the offence would be subject to an infringement notice (see new section 56AB, as
inserted by Schedule 2 to the Bill);
the absence of strict liability may adversely affect the capacity to prosecute
offenders. Whether or not a defendant intentionally, recklessly or negligently used
or disclosed protected information without a relevant authorisation is generally a
matter that is peculiarly within the knowledge of the defendant alone. Proving the
contrary beyond reasonable doubt may require significant and difficult to obtain
indirect and circumstantial evidence.
the use of protected information would play an important role in informing the
Minister in relation to those matters covered by the Act (particularly in relation to
granting permit for the import, export or transit of hazardous waste), which is a
necessary part of ensuring that the Act remains an effective and efficient
mechanism to both implement Australia's obligations under the Basel Convention
and to realise its intended environmental benefits. If protected information is used
or disclosed without authorisation it may deter other persons from providing such
information to the Commonwealth in the future;
the person affected would be placed on notice to guard against the possibility of
contravention, which is likely to significantly enhance the effectiveness of the
enforcement regime in deterring the conduct in question.
290. The defence of honest and reasonable mistake of fact is available for strict liability
offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence
of strict liability does not make any other defence unavailable (see subsection 6.1(3) of
Schedule 1 to the Criminal Code).
291. New subsection 41V(5) would have the effect of establishing a mirror civil penalty
provision which is contravened in circumstances where a person contravenes the
prohibition in subsection 41V(1) and where the use or disclosure is not authorised by a
Commonwealth law or a prescribed State or Territory law. The maximum penalty would
be 360 penalty units.
292. The combination of fault-based offence, strict liability offence and civil penalty
provision would provide an adequate deterrent from officials using or disclosing
54
protected information without authorisation, which has the potential to cause significant
harm. It is also appropriate to include both civil and criminal penalties in order to provide
flexibility for the Commonwealth to enforce the prohibition appropriately without always
needing to pursue criminal penalties (noting that conviction for a criminal offence carries
with it a range of consequences beyond the immediate penalty). It is expected criminal
proceedings would be brought for conduct that contravenes subsection 41V(1) and is at
the more serious end of the spectrum or that involves a higher degree of malfeasance.
Section 41W - Unauthorised use or disclosure of protected information - official of a
Commonwealth entity
293. New subsection 41W(1) would provide a general prohibition for a person who is (or
has been) an official of a Commonwealth entity, and who obtained protected information
in that capacity when the information was disclosed to their entity under new section
41G, to use or disclose the information other than for the purpose for which it was
disclosed to the entity. This prohibition ensures that protected information disclosed to
another Commonwealth entity under section 41G is not misused by an official of that
entity.
294. New subsection 41W(2) would have the effect that a person who contravenes the
prohibition in subsection 41W(1) would be committing a fault-based offence. The
maximum penalty for the offence would be 2 years imprisonment, or 180 penalty units, or
both.
295. New subsection 41W(3) would have the effect that a person who contravenes the
prohibition in subsection 41W(1) would also be committing an offence of strict liability
with a maximum penalty of 60 penalty units.
296. Strict liability is proposed for this offence having regard to the Commonwealth Guide
to Framing Offences and the Scrutiny of Bills Committee 6th Report. Consistent with
these documents, strict liability is appropriate as:
the offence is not punishable by imprisonment;
the offence is subject to a maximum penalty of 60 penalty units for an individual;
the actions which trigger the offence are simple, readily understood and easily
defended. The offence is triggered if an official of a Commonwealth entity uses or
discloses protected information for a purpose other than the purpose that the
information was disclosed to the entity under section 41G;
offences relating to the unauthorised disclosure of information need to be dealt
with efficiently to ensure industry and community confidence in the regulatory
regime;
the offence would be subject to an infringement notice (see new section 56AB, as
inserted by Schedule 2 to the Bill);
55
the absence of strict liability may adversely affect the capacity to prosecute
offenders. Whether or not a defendant intentionally, recklessly or negligently
disclosed protected information for a particular purpose is generally a matter that
is peculiarly within the knowledge of the defendant alone. Proving the contrary
beyond reasonable doubt may require significant and difficult to obtain indirect
and circumstantial evidence;
the use of protected information would play an important role in informing the
Minister in relation to those matters covered by the Act (particularly in relation to
granting permit for the import, export or transit of hazardous waste), which is a
necessary part of ensuring that the Act remains an effective and efficient
mechanism to both implement Australia's obligations under the Basel Convention
and to realise its intended environmental benefits. If protected information is used
or disclosed without authorisation it may deter other persons from providing such
information to the Commonwealth in the future;
the person affected would be placed on notice to guard against the possibility of
contravention, which is likely to significantly enhance the effectiveness of the
enforcement regime in deterring the conduct in question.
297. The defence of honest and reasonable mistake of fact is available for strict liability
offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence
of strict liability does not make any other defence unavailable (see subsection 6.1(3) of
Schedule 1 to the Criminal Code).
298. New subsection 41W(4) would have the effect of establishing a mirror civil penalty
provision which is contravened in circumstances where a person contravenes the
prohibition in subsection 41W(1). The maximum penalty would be 360 penalty units.
299. The combination of fault-based offence, strict liability offence and civil penalty
provision would provide an adequate deterrent from Commonwealth officials misusing
protected information, which has the potential to cause significant harm. It is also
appropriate to include both civil and criminal penalties in order to provide flexibility for
the Commonwealth to enforce the prohibition appropriately without always needing to
pursue criminal penalties (noting that conviction for a criminal offence carries with it a
range of consequences beyond the immediate penalty). It is expected that criminal
proceedings would be brought for conduct that contravenes subsection 41W(1) and is at
the more serious end of the spectrum or that involves a higher degree of malfeasance.
Part 2 - Application provisions
Item 3
300. Item 3 is an application provision. It would have the effect that notices to produce
information or documents under section 41E of the Act, as inserted by Schedule 3 may
only be given on or after the commencement of the Bill, but can apply in relation to a
56
suspected contravention of the Act that occurred either before or after the commencement
of the Bill.
301. The intention of this application provision is to clarify that the new information
gathering powers to be inserted into the Act, including section 41E, should be able to be
used, after the commencement of the Bill, to investigate potential contraventions of the
Act that occurred prior to the Bill being amended. This is consistent with the application
of monitoring and investigation powers being inserted into the Act by Schedule 2 to the
Bill.
Item 4
302. Item 4 is an application provision. It would have the effect that Division 2 of Part 4B
of the Act (concerning permitted uses and disclosures of protected information), as
inserted by Schedule 3, will regulate all uses and disclosures of relevant information on
and after the commencement of the Bill. This is the case whether or not the particular
information being used or disclosed had been obtained prior to, on or after the Bill being
amended.
303. The purpose of this application provision is to provide certainty for both industry and
government officials concerning how relevant information (including the subset that is
protected information) will be dealt with in the future.
SCHEDULE 4 - OFFENCE AND CIVIL PENALTY PROVISIONS
General outline
304. Schedule 4 would amend the Act update and, in some cases, replace the enforcement
provisions of the Act, including the offences provisions and ministerial orders. The
purpose of these amendments is to streamline and reduce complexity and move to a more
modern drafting style, as well as to increase the penalties and make the offence provisions
more fit for purpose. It is intended that the enforcement provisions, as amended by this
Schedule, will act as a deterrent to non-compliant behaviour that has the potential to
significantly harm human health and the environment and result in breach of Australia's
international obligations. Schedule 4 would also add strict liability offences and civil
penalty provisions to complement the existing fault-based offences to provide an
escalating range of available sanctions.
Details on the amendments
Part 1 - Amendments
Item 1
305. Item 1 would amend section 4 of the Act (dealing with definitions) to include a
number of terms that are used in the provisions to be inserted by this Schedule. As the
definition of this Act in section 4 of the Act includes the regulations, the definitions
inserted by this item would also apply to regulations made under the Act.
57
306. Some terms inserted into section 4 by this item are OECD country and recovery
operation.
307. OECD country would be defined as a country that is a member of the Organisation for
Economic Cooperation and Development, under the Convention on the Organisation for
Economic Cooperation and Development done at Paris on 14 December 1960. Recovery
operations would be defined as an operation mentioned in Appendix 5.B to the OECD
Decision, as in force from time to time. The OECD Decision is an international
agreement entered into by OECD members and is amended from time to time, including
to align with the Basel Convention. The note following the definition of OECD country
explains that the OECD decision can be viewed on the OECD website.
Item 2
308. Item 2 would amend the note following subsection 13A(1) of the Act to omit the
reference to paragraph 40A(1)(b) and substitute a reference to new section 33G(1).
309. The item is a consequential amendment to the amendments made by items 4 and 20 of
this Schedule. New section 33G (and existing section 40A) relates to an exemption from
the requirement to obtain a transit permit for certain movements of hazardous waste
between OECD countries for recovery operations.
Item 3
310. Item 3 would amend paragraphs 22(2C)(a) and (b) to omit the reference to subsection
37(2) and substitute a new reference to subsection 38B(2).
311. This item is a consequential amendment to the amendments made by item 17 of this
Schedule. New section 38B (and existing section 37) would have the effect that if a
person does not comply with a ministerial order requiring the person to do something, the
Minister may arrange for the thing to be done and the person who failed to comply with
the order is liable to pay the Commonwealth an amount equal to the costs incurred.
Item 4
312. Item 4 would amend the Act to insert a new Part 2A. New Part 2A would set out the
offence and civil penalty provisions relating to importing and exporting hazardous waste,
carrying out transit proposals of hazardous waste, and the sale of hazardous waste (other
than those offences and civil penalty provisions that relate to contravention of ministerial
orders and are covered by item 17 of this Schedule).
313. New Part 2A would contain the following new sections:
33A (importing hazardous waste);
33B (importing hazardous waste - injury or damage to human beings or the
environment);
33C (exporting hazardous waste);
58
33D (exporting hazardous waste - injury or damage to human beings or the
environment);
33E (transit of hazardous waste);
33F (transit of hazardous waste to human beings or the environment);
33G (notice that transit permit is not required);
33H (sale of hazardous waste)
314. New Part 2A is intended to replace existing sections 39, 40, 40A and 40AA, which
are being repealed by item 19 of this Schedule. Part 2A would update the drafting of the
offences in those provisions to improve clarity, reduce complexity and adopt modern
drafting practices to improve readability. Part 2A would also add strict liability offences
and civil penalties for the relevant contraventions (in addition to fault-based offences) and
would increase the penalties to appropriate amounts to deter persons from contravening
the Act.
Division 1 - Regulation of import of hazardous waste
Section 33A - Import of hazardous waste - basic contravention
315. New section 33A would replace existing section 39 of the Act.
316. New section 33A would create an offence and civil penalty provision dealing with the
import of hazardous waste. There would be three separate contravention - new
subsections 33A(1), 33A(2) and 33A(3).
317. Subsection 33A(1) would prohibit a person from importing hazardous waste if:
the person does not have an import permit or transit permit authorising the import; or
the person has not been given a notification under subsection 33G(1) that they do not
require a transit permit for the import; or
the import has not been authorised by a ministerial order.
318. This would be the basic contravention for persons who import hazardous waste
without a permit or other authorisation under the Act.
319. Subsection 33A(2) would apply to persons who hold an import permit authorising the
person to import hazardous waste. Such persons would be prohibited from importing
hazardous waste other than in accordance with their permit. An example of when this
contravention may be relevant is where a person alters their import proposal so that they
59
import more hazardous waste than is authorised by their permit, arrive at a different port
in Australia, or take a different route to Australia.
320. Subsection 33A(3) would also apply to persons who hold an import permit
authorising the person to import hazardous waste. Such persons would be prohibited from
importing hazardous waste in a way that does not comply with one or more conditions
that the permit is subject to (permit conditions).
321. The first note following subsection 33A(1) would explain that a notification given
under subsection 33G(1) (that a transit permit is not required) may be revoked (and cease
to have effect) under subsection 33G(4)).
322. The second note following subsection 33A(1), and the notes following subsections
33A(2) and (3) would explain that the physical elements of the offence in subsection
33A(4) are set out in these subsections.
323. New subsection 33A(4) would have the effect that a person who contravenes the
prohibition in any of subsections 33A(1), 33A(2) or 33A(3) would be committing a fault-
based offence. The maximum penalty for the offence would be 5 years imprisonment or
300 penalty units, or both. A body corporate would be liable for five times this amount as
a maximum penalty (see subsection 4B(3) of the Crimes Act).
324. New subsection 33A(4) would have the effect that a person who contravenes the
prohibition any of subsection 33A(1), 33A(2) or 33A(3) would also be committing an
offence of strict liability with a maximum penalty of 60 penalty units.
325. Strict liability is proposed for this offence having regard to the Commonwealth Guide
to Framing Offences and the Scrutiny of Bills Committee 6th Report. Consistent with
these documents, strict liability is appropriate as:
the offence is not punishable by imprisonment;
the offence is subject to a maximum penalty of 60 penalty units for an individual;
the actions which trigger the offence are simple, readily understood and easily
defended. The offence is triggered if a person imports hazardous waste into
Australia without authorisation, or other than in accordance with their permit or
permit conditions;
offences relating to the importing hazardous waste without authorisation, or
breaching an import permit need to be dealt with efficiently to ensure industry and
community confidence in the regulatory regime;
the offence would be subject to an infringement notice (see new section 56AB, as
inserted by Schedule 2 to the Bill);
60
the absence of strict liability may adversely affect the capacity to prosecute
offenders. Whether or not a defendant intentionally, recklessly or negligently
imports hazardous waste into Australia without authorisation, or other than in
accordance with their permit or permit conditions is generally a matter that is
peculiarly within the knowledge of the defendant alone. Proving the contrary
beyond reasonable doubt may require significant and difficult to obtain indirect
and circumstantial evidence;
the assessment of import proposals are a necessary part of ensuring that the Act
remains an effective and efficient mechanism to both implement Australia's
obligations under the Basel Convention and to realise its intended environmental
benefits. The import of hazardous waste without authorisation, or in breach of an
import permit may result in significant environmental harm and could damage
Australia's international relations;
the person affected would be placed on notice to guard against the possibility of
contravention, which is likely to significantly enhance the effectiveness of the
enforcement regime in deterring the conduct in question.
326. The defence of honest and reasonable mistake of fact is available for strict liability
offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence
of strict liability does not make any other defence unavailable (see subsection 6.1(3) of
Schedule 1 to the Criminal Code).
327. New subsection 33A(6) would have the effect of establishing a mirror civil penalty
provision which is contravened in circumstances where a person contravenes the
prohibition in any of subsection 33A(1), 33A(2) or 33A(3). The maximum penalty would
be 600 penalty units. A body corporate would be liable for five times this amount as a
maximum penalty (see subsection 82(5) of the Regulatory Powers Act).
328. The combination of fault-based offence, strict liability offence and civil penalty
provision would provide an adequate deterrent from person importing hazardous waste
without authorisation, or in breach of a permit, which has the potential to cause
significant harm. It is also appropriate to include both civil and criminal penalties in order
to provide flexibility for the Commonwealth to enforce the prohibition appropriately
without always needing to pursue criminal penalties (noting that conviction for a criminal
offence carries with it a range of consequences beyond the immediate penalty). It is
expected criminal proceedings would be brought for conduct that contravenes subsections
33A(1), 33A(2) or 33A(3) and is at the more serious end of the spectrum or that involves
a higher degree of malfeasance.
329. The size of the maximum penalty for both the fault-based offence and the civil
penalty provision is appropriate as a deterrent. It reflects the seriousness of importing
hazardous waste without authorisation, or in breach of a permit, which could in turn result
in harm to human and environmental health. Such conduct may undermine the integrity of
the regulatory framework provided for by the Act. This conduct may also result in the
61
breach of Australia's obligations under the Basel Convention which could damage
Australia's international relations.
330. The maximum civil penalty of 600 penalty units is higher than the maximum penalty
available for the criminal offence. This is intended to ensure that it will act as a deterrent,
particularly for body corporates, and also recognises that being found liable to pay a civil
penalty does not attract imprisonment or a criminal conviction.
Section 33B - Import of hazardous waste - injury or damage to human beings or the
environment
331. New section 33B would create a new aggravated offence and civil penalty provision
for the import of hazardous waste that would apply where the non-compliance results, or
is likely to result, in injury or damage to human beings or the environment.
332. As with new section 33A, new section 33B would contain three separate
contraventions - new subsections 33B(1), 33B(2) and 33B(3).
333. Subsection 33B(1) would prohibit a person from importing hazardous waste to
Australia if:
the person does not have an import permit authorising the person to import the
hazardous waste to Australia; or
the person has not been given a notification under subsection 33G(1) that they do not
require a transit permit for the import; or
the import has not been authorised by a ministerial order; and
the import, or the presence of the hazardous waste in Australia, injures or damages, or
is likely to injure of damage, human beings or the environment.
334. Subsection 33B(2) would apply to persons who hold an import permit authorising the
person to import hazardous waste. Such persons would be prohibited from importing
hazardous waste to Australia other than in accordance with their permit, where the
import, or the presence of the hazardous waste in Australia, injures or damages, or is
likely to injure or damage, human beings or the environment. An example of when this
contravention may be relevant is where a person alters their import proposal so that they
import more hazardous waste to Australia than is authorised by their permit, or take a
different route to Australia, and this change results in, or is likely to result in, injury or
damage to humans or the environment.
335. Subsection 33B(3) would also apply to persons who hold an import permit authorising
the person to import hazardous waste. Such persons would be prohibited from importing
hazardous waste to Australia in a way that does not comply with one or more conditions
that the permit is subject to (whether before, during or after the import) where the non-
62
compliance with the permit condition injures or damages, or is likely to injure or damage,
human beings or the environment.
336. The first note following subsection 33B(1) would explain that a notification given
under subsection 33G(1) (that a transit permit is not required) may be revoked (cease to
have effect) under subsection 33G(4).
337. The second note after subsection 33B(1) and the notes following subsection 33B(2)
and (3) would explain that the physical elements of the offence in subsection 33B(4) are
set out in these subsections.
338. New subsection 33B(4) would have the effect that a person who contravenes the
prohibition in any of subsections 33B(1), 33B(2) or 33B(3) would be committing a fault-
based offence. The maximum penalty for the offence would be 8 years imprisonment or
500 penalty units, or both. A body corporate would be liable for five times this amount as
a maximum penalty (see subsection 4B(3) of the Crimes Act).
339. New subsection 33B(5) would allow, in a trial for an offence against new subsection
33B(4), the trier of fact to find the defendant not guilty of that offence but guilty of the
offence in subsection 33A(4), provided the defendant has been provided procedural
fairness in relation to that finding. The purpose of this provision is to allow proceedings
for the aggravated offence in section 33B to revert to the basic contravention in
subsection 33A in the event that the aggravated circumstances - being that the conduct of
the defendant injured or damaged, or is likely to injure or damage, human beings or the
environment - cannot be proven beyond reasonable doubt.
340. New subsection 33B(6) would have the effect that a person who contravenes the
prohibition in any of subsections 33B(1), 33B(2) or 33B(3) would also be committing an
offence of strict liability with a maximum penalty of 60 penalty units.
341. Strict liability is proposed for this offence having regard to the Commonwealth Guide
to Framing Offences and the Scrutiny of Bills Committee 6th Report. Consistent with
these documents, strict liability is appropriate as:
the offence is not punishable by imprisonment;
the offence is subject to a maximum penalty of 60 penalty units for an individual;
the actions which trigger the offence are simple, readily understood and easily
defended. The offence is triggered if a person imports hazardous waste to
Australia without authorisation, or otherwise than in accordance with their permit
or permit conditions, and the result is injury or damage, or likely injury or
damage, to human beings or the environment;
offences relating to importing hazardous waste without authorisation, or breaching
an import permit, particularly when injury or damage occurs or is likely to occur,
63
need to be dealt with efficiently to ensure industry and community confidence in
the regulatory regime;
the offence would be subject to an infringement notice (see new section 56AB, as
inserted by Schedule 2 to the Bill);
the absence of strict liability may adversely affect the capacity to prosecute
offenders. Whether or not a defendant intentionally, recklessly or negligently
imported hazardous waste to Australia without authorisation, or otherwise than in
accordance with their permit or permit conditions, causing or likely to cause
injury or damage, is generally a matter that is peculiarly within the knowledge of
the defendant alone. Proving the contrary beyond reasonable doubt may require
significant and difficult to obtain indirect and circumstantial evidence;
The assessment of import proposals is a necessary part of ensuring that the Act
remains an effective and efficient mechanism to both implement Australia's
obligations under the Basel Convention and to realise its intended environmental
benefits. The carrying out of an import proposal for hazardous waste without
authorisation, or in breach of a export permit, particularly where the result is
injury or damage, or likely injury or damage, to human beings or the environment,
may result in significant environmental harm and could damage Australia's
international relations;
the person affected would be placed on notice to guard against the possibility of
contravention, which is likely to significantly enhance the effectiveness of the
enforcement regime in deterring the conduct in question.
342. The defence of honest and reasonable mistake of fact is available for strict liability
offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence
of strict liability does not make any other defence unavailable (see subsection 6.1(3) of
Schedule 1 to the Criminal Code).
343. New subsection 33B(7) would have the effect of establishing a mirror civil penalty
provision which is contravened in circumstances where a person contravenes the
prohibition in any of subsections 33B(1), 33B(2) or 33B(3). The maximum penalty would
be 1000 penalty units. A body corporate would be liable for five times this amount as a
maximum penalty (see subsection 82(5) of the Regulatory Powers Act).
344. The combination of fault-based offence, strict liability offence and civil penalty
provision would provide an adequate deterrent from persons importing hazardous waste
without authorisation, or in breach of a permit, where that conduct causes, or is likely to
cause, injury or damage to human beings or the environment. It is also appropriate to
include both civil and criminal penalties in order to provide flexibility for the
Commonwealth to enforce the prohibition appropriately without always needing to pursue
criminal penalties (noting that conviction for a criminal offence carries with it a range of
consequences beyond the immediate penalty). It is expected criminal proceedings would
64
be brought for conduct that contravenes subsections 33B(1), 33B(2) or 33B(3) and is at
the more serious end of the spectrum or that involves a higher degree of malfeasance.
345. The size of the maximum penalty for both the fault-based offence and the civil
penalty provision is appropriate as a deterrent. It reflects the seriousness of importing
hazardous waste without authorisation, or in breach of a permit, which in turn results, or
is likely to result, in injury or damage to human and environmental health. Such conduct
may undermine the integrity of the regulatory framework provided for by the Act. This
conduct may also result in the breach of Australia's obligations under the Basel
Convention which could damage Australia's international relations.
346. The maximum civil penalty of 1000 penalty units is higher than the maximum penalty
available for the criminal offence. This is intended to ensure that it will act as a deterrent,
particularly for body corporates, and also recognises that being found liable to pay a civil
penalty does not attract imprisonment or a criminal conviction.
Division 2 - Regulation of export of hazardous waste
Section 33C - Export of hazardous waste - basic contravention
347. New section 33C would replace existing section 40 of the Act.
348. New section 33C would create an offence and civil penalty provision dealing with the
export of hazardous waste. There would be three separate contravention - new
subsections 33C(1), 33C(2) and 33C(3).
349. Subsection 33C(1) would prohibit a person from exporting hazardous waste if:
the person does not have an export permit or transit permit authorising the export; or
the person has not been given a notification under subsection 33G(1) that they do not
require a transit permit for the export; or
the export has not been authorised by a ministerial order.
350. This would be the basic contravention for persons who export hazardous waste
without a permit or other authorisation under the Act.
351. Subsection 33C(2) would apply to persons who hold an export permit authorising the
person to export hazardous waste from Australia. Such persons would be prohibited from
exporting hazardous waste other than in accordance with their permit. An example of
when this contravention may be relevant is where a person alters their export proposal so
that they export more hazardous waste than is authorised by their permit, leave from a
different port in Australia, or take a different route from Australia.
352. Subsection 33C(3) would also apply to persons who hold an export permit authorising
the person to export hazardous waste. Such persons would be prohibited from exporting
65
hazardous waste in a way that does not comply with one or more conditions that the
permit is subject to (permit conditions).
353. The first note following subsection 33C(1) would explain that a notification given
under subsection 33G(1) (that a transit permit is not required) may be revoked (and cease
to have effect) under subsection 33G(4).
354. The second note following subsection 33C(1), and the notes following subsection
33C(2) and (3) would explain that the physical elements of the offence in subsection
33C(4) are set out in these subsections.
355. New subsection 33C(4) would have the effect that a person who contravenes the
prohibition in any of subsections 33C(1), 33C(2) or 33C(3) would be committing a fault-
based offence. The maximum penalty for the offence would be 5 years imprisonment or
300 penalty units, or both. A body corporate would be liable for five times this amount as
a maximum penalty (see subsection 4B(3) of the Crimes Act).
356. New subsection 33C(4) would have the effect that a person who contravenes the
prohibition any of subsection 33C(1), 33C(2) or 33C(3) would also be committing an
offence of strict liability with a maximum penalty of 60 penalty units.
357. Strict liability is proposed for this offence having regard to the Commonwealth Guide
to Framing Offences and the Scrutiny of Bills Committee 6th Report. Consistent with
these documents, strict liability is appropriate as:
the offence is not punishable by imprisonment;
the offence is subject to a maximum penalty of 60 penalty units for an individual;
the actions which trigger the offence are simple, readily understood and easily
defended. The offence is triggered if a person exports hazardous waste from
Australia without authorisation, or otherwise than in accordance with their permit
or permit conditions;
offences relating to the exporting hazardous waste without authorisation, or
breaching an export permit need to be dealt with efficiently to ensure industry and
community confidence in the regulatory regime;
the offence would be subject to an infringement notice (see new section 56AB, as
inserted by Schedule 2 to the Bill);
the absence of strict liability may adversely affect the capacity to prosecute
offenders. Whether or not a defendant intentionally, recklessly or negligently
exported hazardous waste into Australia without authorisation, or other than in
accordance with their permit or permit conditions is generally a matter that is
peculiarly within the knowledge of the defendant alone. Proving the contrary
66
beyond reasonable doubt may require significant and difficult to obtain indirect
and circumstantial evidence;
the assessment of export proposals is a necessary part of ensuring that the Act
remains an effective and efficient mechanism to both implement Australia's
obligations under the Basel Convention and to realise its intended environmental
benefits. The export of hazardous waste without authorisation, or in breach of an
export permit may result in significant environmental harm and could damage
Australia's international relations.
the person affected would be placed on notice to guard against the possibility of
contravention, which is likely to significantly enhance the effectiveness of the
enforcement regime in deterring the conduct in question.
358. The defence of honest and reasonable mistake of fact is available for strict liability
offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence
of strict liability does not make any other defence unavailable (see subsection 6.1(3) of
Schedule 1 to the Criminal Code).
359. New subsection 33C(6) would have the effect of establishing a mirror civil penalty
provision which is contravened in circumstances where a person contravenes the
prohibition in any of subsection 33C(1), 33C(2) or 33C(3). The maximum penalty would
be 600 penalty units. A body corporate would be liable for five times this amount as a
maximum penalty (see subsection 82(5) of the Regulatory Powers Act).
360. The combination of fault-based offence, strict liability offence and civil penalty
provision would provide an adequate deterrent from person exporting hazardous waste
without authorisation, or in breach of a permit, which has the potential to cause
significant harm. It is also appropriate to include both civil and criminal penalties in order
to provide flexibility for the Commonwealth to enforce the prohibition appropriately
without always needing to pursue criminal penalties (noting that conviction for a criminal
offence carries with it a range of consequences beyond the immediate penalty). It is
expected criminal proceedings would be brought for conduct that contravenes subsections
33C(1), 33C(2) or 33C(3) and is at the more serious end of the spectrum or that involves a
higher degree of malfeasance.
361. The size of the maximum penalty for both the fault-based offence and the civil
penalty provision is appropriate as a deterrent. It reflects the seriousness of exporting
hazardous waste without authorisation, or in breach of a permit, which could in turn result
in harm to human and environmental health. Such conduct may undermine the integrity of
the regulatory framework provided for by the Act. This conduct may also result in the
breach of Australia's obligations under the Basel Convention which could damage
Australia's international relations.
362. The maximum civil penalty of 600 penalty units is higher than the maximum penalty
available for the criminal offence. This is intended to ensure that it will act as a deterrent,
67
particularly for body corporates, and also recognises that being found liable to pay a civil
penalty does not attract imprisonment or a criminal conviction.
Section 33D - Export of hazardous waste - injury or damage to human beings or the
environment
363. New section 33D would create a new aggravated offence and civil penalty provision
for the export of hazardous waste that would apply where the non-compliance results, or
is likely to result, in injury or damage to human beings or the environment.
364. As with new section 33C, new section 33D would contain three separate
contraventions - new subsections 33D(1), 33D(2) and 33D(3).
365. Subsection 33D(1) would prohibit a person from exporting hazardous waste from
Australia if:
the person does not have an export permit authorising the person to export the
hazardous waste from Australia; or
the person has not been given a notification under subsection 33G(1) that they do not
require a transit permit for the export; or
the export has not been authorised by a ministerial order; and
the export, or the presence of the hazardous waste outside Australia after the export,
injures or damages, or is likely to injure of damage, human beings or the environment.
366. Subsection 33D(2) would apply to persons who hold an export permit authorising the
person to export hazardous waste. Such persons would be prohibited from exporting
hazardous waste from Australia other than in accordance with their permit where the
export, or the presence of the hazardous waste outside Australia after the export, injures
or damages, or is likely to injure or damage, human beings or the environment. An
example of when this contravention may be relevant is where a person alters their export
proposal so that they export more hazardous waste from Australia than is authorised by
their permit, or take a different route from Australia, and this change results in, or is
likely to result in injury or damage to humans or the environment.
367. Subsection 33D(3) would also apply to persons who hold an export permit authorising
the person to export hazardous waste. Such persons would be prohibited from exporting
hazardous waste from Australia in a way that does not comply with one or more
conditions that the permit is subject to (whether before, during or after the export) where
the non-compliance with the permit condition injures or damages, or is likely to injure or
damage, human beings or the environment.
368. The first note after subsection 33D(1) would explain that a notification given under
subsection 33G(1) (that a transit permit is not required) may be revoked (cease to have
effect) under subsection 33G(4).
68
369. The second note following subsection 33D(1), and the notes following subsections
33D(2) and (3) explain that the physical elements of the offence in subsection 33D(4) are
set out in these subsections.
370. New subsection 33D(4) would have the effect that a person who contravenes the
prohibition in any of subsections 33D(1), 33D(2) or 33D(3) would be committing a fault-
based offence. The maximum penalty for the offence would be 8 years imprisonment or
500 penalty units, or both. A body corporate would be liable for five times this amount as
a maximum penalty (see subsection 4B(3) of the Crimes Act).
371. New subsection 33D(5) would allow, in a trial for an offence against new subsection
33D(4), the trier of fact to find the defendant not guilty of that offence but guilty of the
offence in subsection 33C(4), provided the defendant has been provided procedural
fairness in relation to that finding. The purpose of this provision is to allow proceedings
for the aggravated offence in section 33D to revert to the basic contravention in
subsection 33C in the event that the aggravated circumstances - being that the conduct of
the defendant injured or damaged, or is likely to injure or damage, human beings or the
environment - cannot be proven beyond reasonable doubt.
372. New subsection 33D(6) would have the effect that a person who contravenes the
prohibition in any of subsections 33D(1), 33D(2) or 33D(3) would also be committing an
offence of strict liability with a maximum penalty of 60 penalty units.
373. Strict liability is proposed for this offence having regard to the Commonwealth Guide
to Framing Offences and the Scrutiny of Bills Committee 6th Report. Consistent with
these documents, strict liability is appropriate as:
the offence is not punishable by imprisonment;
the offence is subject to a maximum penalty of 60 penalty units for an individual;
the actions which trigger the offence are simple, readily understood and easily
defended. The offence is triggered if a person exports hazardous waste from
Australia without authorisation, or otherwise than in accordance with their permit
or permit conditions, and the result is injury or damage, or likely injury or
damage, to human beings or the environment;
offences relating to exporting hazardous waste without authorisation, or breaching
an export permit, particularly when injury or damage occurs or is likely to occur,
need to be dealt with efficiently to ensure industry and community confidence in
the regulatory regime;
the offence would be subject to an infringement notice (see new section 56AB, as
inserted by Schedule 2 to the Bill);
69
the absence of strict liability may adversely affect the capacity to prosecute
offenders. Whether or not a defendant intentionally, recklessly or negligently
exported hazardous waste from Australia without authorisation, or otherwise than
in accordance with their permit or permit conditions, causing or likely to cause
injury or damage, is generally a matter that is peculiarly within the knowledge of
the defendant alone. Proving the contrary beyond reasonable doubt may require
significant and difficult to obtain indirect and circumstantial evidence.
the assessment of export proposals is a necessary part of ensuring that the Act
remains an effective and efficient mechanism to both implement Australia's
obligations under the Basel Convention and to realise its intended environmental
benefits. The carrying out of a export proposal for hazardous waste without
authorisation, or in breach of a export permit, particularly where the result is
injury or damage, or likely injury or damage, to human beings or the environment,
may result in significant environmental harm and could damage Australia's
international relations.
the person affected would be placed on notice to guard against the possibility of
contravention, which is likely to significantly enhance the effectiveness of the
enforcement regime in deterring the conduct in question.
374. The defence of honest and reasonable mistake of fact is available for strict liability
offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence
of strict liability does not make any other defence unavailable (see subsection 6.1(3) of
Schedule 1 to the Criminal Code).
375. New subsection 33D(7) would have the effect of establishing a mirror civil penalty
provision which is contravened in circumstances where a person contravenes the
prohibition in any of subsections 33D(1), 33D(2) or 33D(3). The maximum penalty
would be 1000 penalty units. A body corporate would be liable for five times this amount
as a maximum penalty (see subsection 82(5) of the Regulatory Powers Act).
376. The combination of fault-based offence, strict liability offence and civil penalty
provision would provide an adequate deterrent from persons exporting hazardous waste
without authorisation, or in breach of a permit, where that conduct causes, or is likely to
cause, injury or damage to human beings or the environment. It is also appropriate to
include both civil and criminal penalties in order to provide flexibility for the
Commonwealth to enforce the prohibition appropriately without always needing to pursue
criminal penalties (noting that conviction for a criminal offence carries with it a range of
consequences beyond the immediate penalty). It is expected criminal proceedings would
be brought for conduct that contravenes subsections 33D(1), 33D(2) or 33D(3) and is at
the more serious end of the spectrum or that involves a higher degree of malfeasance.
377. The size of the maximum penalty for both the fault offence and the civil penalty
provision is appropriate as a deterrent. It reflects the seriousness of exporting hazardous
waste without authorisation, or in breach of a permit, which in turn results, or is likely to
70
result, in injury or damage to human and environmental health. Such conduct may
undermine the integrity of the regulatory framework provided for by the Act. This
conduct may also result in the breach of Australia's obligations under the Basel
Convention which could damage Australia's international relations.
378. The maximum civil penalty of 1000 penalty units is higher than the maximum penalty
available for the criminal offence. This is intended to ensure that it will act as a deterrent,
particularly for body corporates, and also recognises that being found liable to pay a civil
penalty does not attract imprisonment or a criminal conviction.
Division 3 - Regulation of transit of hazardous waste
Section 33E - Transit of hazardous waste - basic contravention
379. New section 33E would replace existing section 40A of the Act.
380. New section 33E would create an offence and civil penalty provision dealing with the
transit of hazardous waste. There would be four separate contravention - new subsections
33E(1), 33E(2), 33E(3) and 33E(4).
381. Subsection 33E(1) would prohibit a person from bringing hazardous waste into
Australia in the course of carrying out a transit proposal if:
the person does not have a transit permit authorising the person to bring hazardous
waste into Australia; or
the person has not been given a notification under subsection 33G(1) that they do not
require a transit permit for the transit proposal.
382. This would be the basic contravention for persons who bring hazardous waste into
Australia in the course of carrying out a transit proposal without a permit or a transit
notification under subsection 33G(1).
383. Subsection 33E(2) would apply to persons who hold a transit permit authorising the
person to bring hazardous waste into Australia. Such persons would be prohibited from
bringing hazardous waste into Australia as part of a transit proposal other than in
accordance with their permit. An example of when this contravention may be relevant is
where a person alters their transit proposal so that they bring more hazardous waste into
Australia than is authorised by their permit, or take a different route to Australia.
384. Subsection 33E(3) would apply to persons who hold a transit permit authorising the
person to export hazardous waste from Australia in the course of carrying out a transit
proposal. Such persons would be prohibited from exporting hazardous waste from
Australia otherwise than in accordance with their transit permit.
385. Subsection 33E(4) would apply to persons who hold a transit permit authorising the
person to bring hazardous waste into Australia in the course of carrying out a transit
proposal. Such persons would be prohibited from carrying out their transit proposal in a
71
way that does not comply with one or more conditions that the permit is subject to (permit
conditions. The breach of the permit condition may occur before, during or after the waste
is brought into Australia (including during the ensuing export of the waste from
Australia).
386. The note following subsection 33E(1) would explain that a notification given under
subsection 33G(1) (that a transit permit is not required) can be revoked (cease to have
effect) under subsection 33G(4).
387. The second note following subsection 33E(1) and the notes following subsections
33E(2), (3) and (4) explain that the physical elements of the offence in subsection 33E(5)
are set out in these subsections.
388. New subsection 33E(5) would have the effect that a person who contravenes the
prohibition in any of subsections 33E(1), 33E(2), 33E(3) or 33E(4) would be committing
a fault-based offence. The maximum penalty for the offence would be 5 years
imprisonment or 300 penalty units, or both. A body corporate would be liable for five
times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act).
389. New subsection 33E(6) would have the effect that a person who contravenes the
prohibition in any of subsections 33E(1), 33E(2), 33E(3) or 33E(4) would also be
committing an offence of strict liability with a maximum penalty of 60 penalty units.
390. Strict liability is proposed for this offence having regard to the Commonwealth Guide
to Framing Offences and the Scrutiny of Bills Committee 6th Report. Consistent with
these documents, strict liability is appropriate as:
the offence is not punishable by imprisonment;
the offence is subject to a maximum penalty of 60 penalty units for an individual;
the actions which trigger the offence are simple, readily understood and easily
defended. The offence is triggered if a person brings waste into Australia in the
course of carrying out a transit proposal without authorisation, or carries out a
transit proposal otherwise than in accordance with their permit or permit
conditions;
offences relating to the carrying out a transit proposal for hazardous waste without
authorisation, or breaching an transit permit need to be dealt with efficiently to
ensure industry and community confidence in the regulatory regime;
the offence would be subject to an infringement notice (see new section 56AB, as
inserted by Schedule 2 to the Bill);
the absence of strict liability may adversely affect the capacity to prosecute
offenders. Whether or not a defendant intentionally, recklessly or negligently
72
brought hazardous waste into Australia without authorisation, or carried out a
transit proposal otherwise than in accordance with their permit or permit
conditions is generally a matter that is peculiarly within the knowledge of the
defendant alone. Proving the contrary beyond reasonable doubt may require
significant and difficult to obtain indirect and circumstantial evidence;
the assessment of transit proposals is a necessary part of ensuring that the Act
remains an effective and efficient mechanism to both implement Australia's
obligations under the Basel Convention and to realise its intended environmental
benefits. The carrying out of a transit proposal for hazardous waste without
authorisation, or in breach of a transit permit may result in significant
environmental harm and could damage Australia's international relations;
the person affected would be placed on notice to guard against the possibility of
contravention, which is likely to significantly enhance the effectiveness of the
enforcement regime in deterring the conduct in question.
391. The defence of honest and reasonable mistake of fact is available for strict liability
offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence
of strict liability does not make any other defence unavailable (see subsection 6.1(3) of
Schedule 1 to the Criminal Code).
392. New subsection 33E(7) would have the effect of establishing a mirror civil penalty
provision which is contravened in circumstances where a person contravenes the
prohibition in any of subsections 33E(1), 33E(2), 33E(3) or 33E(4). The maximum
penalty would be 600 penalty units. A body corporate would be liable for five times this
amount as a maximum penalty (see subsection 82(5) of the Regulatory Powers Act).
393. The combination of fault-based offence, strict liability offence and civil penalty
provision would provide an adequate deterrent from persons carrying out transit proposals
without authorisation, or in breach of a permit, which has the potential to cause
significant harm. It is also appropriate to include both civil and criminal penalties in order
to provide flexibility for the Commonwealth to enforce the prohibition appropriately
without always needing to pursue criminal penalties (noting that conviction for a criminal
offence carries with it a range of consequences beyond the immediate penalty). It is
expected criminal proceedings would be brought for conduct that contravenes subsections
33E(1), 33E(2), 33E(3) or 33E(4) and is at the more serious end of the spectrum or that
involves a higher degree of malfeasance.
394. The size of the maximum penalty for both the fault-based offence and the civil
penalty provision is appropriate as a deterrent. It reflects the seriousness of carrying out a
transit proposal without authorisation, or in breach of a permit, which could in turn result
in harm to human and environmental health. Such conduct may undermine the integrity of
the regulatory framework provided for by the Act. This conduct may also result in the
breach of Australia's obligations under the Basel Convention which could damage
Australia's international relations.
73
395. The maximum civil penalty of 600 penalty units is higher than the maximum penalty
available for the criminal offence. This is intended to ensure that it will act as a deterrent,
particularly for body corporates, and also recognises that being found liable to pay a civil
penalty does not attract imprisonment or a criminal conviction.
Section 33F - Transit of hazardous waste - injury or damage to human beings or the
environment
396. New section 33F would create a new aggravated offence and civil penalty provision
for the transit of hazardous waste that would apply where the non-compliance results, or
is likely to result, in injury or damage to human beings or the environment.
397. As with new section 33E, new section 33F would contain four separate contraventions
- new subsections 33F(1), 33F(2), 33F(3) and 33F(4).
398. Subsection 33F(1) would prohibit a person from being hazardous waste into Australia
in the course of carrying out a transit proposal if:
the person does not have a transit permit authorising the person to bring hazardous
waste into Australia, and has not been given a notification under subsection 33G(1)
that they do not require a transit permit for the transit proposal; and
the bringing of the hazardous waste into Australia, or the presence of the hazardous
waste in Australia, injures or damages, or is likely to injure of damage, human beings
or the environment.
399. Subsection 33F(2) would apply to persons who hold an transit permit authorising the
person to bring hazardous waste into Australia. Such persons would be prohibited from
bringing hazardous waste into Australia other than in accordance with their permit where
the bringing of the hazardous waste into Australia, or the presence of the hazardous waste
in Australia, injures or damages, or is likely to injure or damage, human beings or the
environment. An example of when this contravention may be relevant is where a person
alters their transit proposal so that they bring more hazardous waste into Australia than is
authorised by their permit, or take a different route to Australia, and this change results in,
or is likely to result in injury or damage to humans or the environment.
400. Subsection 33F(3) would apply to persons who hold an transit permit authorising the
person to export hazardous waste from Australia in the course of carrying out a transit
proposal. Such persons would be prohibited from exporting hazardous waste from
Australia otherwise than in accordance with their transit proposal where the export, or the
presence of the hazardous waste outside Australia after the export, injures or damages, or
is likely to injure or damage, human beings or the environment.
401. Subsection 33F(4) would apply to persons who hold a transit permit authorising the
person to bring hazardous waste into Australia in the course of carrying out a transit
proposal. Such persons would be prohibited from carrying out their transit proposal in a
74
way that does not comply with one or more conditions that the permit is subject to where
the non-compliance with the permit condition injures or damages, or is likely to injure or
damage, human beings or the environment. The breach of the permit condition may occur
before, during or after the waste is brought into Australia (including during the ensuing
export of the waste from Australia).
402. The first note following subsection 33F(1) would explain that a notification given
under subsection 33G(1) (that a transit permit is not required) may be revoked (cease to
have effect) under subsection 33G(4).
403. The second note following subsection 33F(1) and the notes following subsections
33F(2), (3) and (4) explain that the physical elements of the offence in subsection 33F(5)
are set out in these subsections.
404. New subsection 33F(5) would have the effect that a person who contravenes the
prohibition in any of subsections 33F(1), 33F(2), 33F(3) or 33F(4) would be committing a
fault-based offence. The maximum penalty for the offence would be 8 years
imprisonment or 500 penalty units, or both. A body corporate would be liable for five
times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act).
405. New subsection 33F(6) would allow, in a trial for an offence against new subsection
33F(5), the trier of fact to find the defendant not guilty of that offence but guilty of the
offence in subsection 33E(5), provided the defendant has been provided procedural
fairness in relation to that finding. The purpose of this provision is to allow proceedings
for the aggravated offence in section 33F to revert to the basic contravention in subsection
33E in the event that the aggravated circumstances - being that the conduct of the
defendant injured or damaged, or is likely to injure or damage, human beings or the
environment - cannot be proven beyond reasonable doubt.
406. New subsection 33F(7) would have the effect that a person who contravenes the
prohibition in any of subsections 33F(1), 33F(2), 33F(3) or 33F(4) would also be
committing an offence of strict liability with a maximum penalty of 60 penalty units.
407. Strict liability is proposed for this offence having regard to the Commonwealth Guide
to Framing Offences and the Scrutiny of Bills Committee 6th Report. Consistent with
these documents, strict liability is appropriate as:
the offence is not punishable by imprisonment;
the offence is subject to a maximum penalty of 60 penalty units for an individual;
the actions which trigger the offence are simple, readily understood and easily
defended. The offence is triggered if a person brings waste into Australia in the
course of carrying out a transit proposal without authorisation, or carries out a
transit proposal otherwise than in accordance with their permit or permit
75
conditions, and the result is injury or damage, or likely injury or damage, to
human beings or the environment;
offences relating to the carrying out a transit proposal for hazardous waste without
authorisation, or breaching a transit permit, particularly when injury or damage
occurs or is likely to occur, need to be dealt with efficiently to ensure industry and
community confidence in the regulatory regime;
the offence would be subject to an infringement notice (see new section 56AB, as
inserted by Schedule 2 to the Bill);
the absence of strict liability may adversely affect the capacity to prosecute
offenders. Whether or not a defendant intentionally, recklessly or negligently
brought hazardous waste into Australia without authorisation, or carried out a
transit proposal otherwise than in accordance with their permit or permit
conditions, causing or likely to cause injury or damage, is generally a matter that
is peculiarly within the knowledge of the defendant alone. Proving the contrary
beyond reasonable doubt may require significant and difficult to obtain indirect
and circumstantial evidence;
the assessment of transit proposals is a necessary part of ensuring that the Act
remains an effective and efficient mechanism to both implement Australia's
obligations under the Basel Convention and to realise its intended environmental
benefits. The carrying out of a transit proposal for hazardous waste without
authorisation, or in breach of a transit permit, particularly where the result is
injury or damage, or likely injury or damage, to human beings or the environment,
may result in significant environmental harm and could damage Australia's
international relations;
the person affected would be placed on notice to guard against the possibility of
contravention, which is likely to significantly enhance the effectiveness of the
enforcement regime in deterring the conduct in question.
408. The defence of honest and reasonable mistake of fact is available for strict liability
offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence
of strict liability does not make any other defence unavailable (see subsection 6.1(3) of
Schedule 1 to the Criminal Code).
409. New subsection 33F(8) would have the effect of establishing a mirror civil penalty
provision which is contravened in circumstances where a person contravenes the
prohibition in any of subsections 33F(1), 33F(2), 33F(3) or 33F(4). The maximum
penalty would be 1000 penalty units. A body corporate would be liable for five times this
amount as a maximum penalty (see subsection 82(5) of the Regulatory Powers Act).
410. The combination of fault-based offence, strict liability offence and civil penalty
provision would provide an adequate deterrent from persons carrying out transit proposals
76
without authorisation, or in breach of a permit, that causes, or is likely to cause, injury or
damage to human beings or the environment. It is also appropriate to include both civil
and criminal penalties in order to provide flexibility for the Commonwealth to enforce the
prohibition appropriately without always needing to pursue criminal penalties (noting that
conviction for a criminal offence carries with it a range of consequences beyond the
immediate penalty). It is expected criminal proceedings would be brought for conduct
that contravenes subsections 33F(1), 33F(2), 33F(3) or 33F(4) and is at the more serious
end of the spectrum or that involves a higher degree of malfeasance.
411. The size of the maximum penalty for both the fault-based offence and the civil
penalty provision is appropriate as a deterrent. It reflects the seriousness of carrying out a
transit proposal without authorisation, or in breach of a permit, which in turn results, or is
likely to result, in injury or damage to human and environmental health. Such conduct
may undermine the integrity of the regulatory framework provided for by the Act. This
conduct may also result in the breach of Australia's obligations under the Basel
Convention which could damage Australia's international relations.
412. The maximum civil penalty of 1000 penalty units is higher than the maximum penalty
available for the criminal offence. This is intended to ensure that it will act as a deterrent,
particularly for body corporates, and also recognises that being found liable to pay a civil
penalty does not attract imprisonment or a criminal conviction.
Section 33G - Notice that transit permit not required
413. New section 33G would replace existing paragraph 40A(1)(b) and deals with
notifications for transit proposals concerning the movement of hazardous waste from one
OECD country to another OECD country for recovery operations. Consistently with the
OECD Decision, such movements are considered to be lower risk to the environment and
therefore may not require a transit permit.
414. New subsection 33G would allow the Minister to notify a person, in writing, that the
person does not require a transit permit for their transit proposal.
415. The Minister would only be able to give a notification under subsection 33G(1) if they
are satisfied that all of the following criteria are met:
carrying out the transit proposal is in connection with the movement of hazardous
waste from an OECD country to another OECD country;
the hazardous waste is destined for recovery operations;
carrying out the transit proposal will not pose a significant risk of injury or damage to
human beings or the environment;
any other matters prescribed by the regulations; and
any other matters the Minister considers relevant.
77
416. Limiting transit notifications under new section 33G to those movements of
hazardous waste destined for recovery operations would narrow the Minister's power
from existing paragraph 40A(1)(b). However, this limitation is consistent with Australia's
obligations under the OECD Decision, which only applies to the transboundary
movement of hazardous waste between OECD countries for recovery operations.
417. Subsection 33G(2) would allow the Minister, even if satisfied that the criteria in
subsection 33G(1) are met, to decide not to grant a notification if the applicant has
previously failed to provide, or arrange to provide, an auditor with assistance that is
reasonably necessary for the conduct of an audit.
418. The first note after subsection 33G(2) would explain to readers that the requirement to
provide an auditor with assistance that is reasonably necessary for the conduct of an audit
is in new section 54 (see amendments made by item 18 of Schedule 2). The second note
would explain that the relevant audit may not be in relation to a notification, as the
requirement imposed by new section 54 would apply to an any audit of operations
covered by a permit, a ministerial order, a notification given under new section 33G that
no transit permit is required, or other prescribed operations.
419. Subsection 33G(3) would require the Minister, as soon as practicable after giving a
notification under subsection 33G(1), to cause particulars of the notification to be
published on the Department's website.
420. Subsection 33G(4) would create a new power for the Minister to revoke a notification
given under subsection 33G(1) if the Minister is no longer satisfied of the matters in that
subsection, or if the person who received the notice is failing (or has failed) after the
notice was given to provide, or arrange to provide, an auditor with assistance that is
reasonably necessary for the conduct of an audit.
421. It is necessary to be able to revoke a notice if, for example, because of changing
circumstances and risks, the Minister is no longer satisfied that carrying out the transit
proposal will not pose a significant risk of injury or damage to human beings or the
environment. However, the Minister would only be able to revoke a notification in
respect of a transit proposal that has not yet begun (see subsection 33G(5)).
Division 4 - Regulation of the sale of hazardous waste
Section 33H - Regulation of the sale of hazardous waste
422. New section 33H would replace existing section 40AA of the Act.
423. New section 33H would contain two prohibitions relating to the sale of hazardous
waste to corporations or other persons located outside Australia. The purpose of limiting
sales of hazardous waste to such persons is to reduce the risk that the waste will be
exported without a permit by a person who is located outside Australia and therefore is
difficult to hold accountable.
78
424. Subsection 33H(1) would prohibit a person from selling hazardous waste to a body
corporate incorporated outside Australia (whether the sale occurs within or outside
Australia) if the following circumstances are met:
the body corporate does not have a registered office in Australia or does not have a
principal office, and at least one executive officer, in Australia; and
the person sells the waste knowing, or being reckless as to whether, the waste is to be
exported by the body corporate; and
an export permit authorising the export of the waste is not in force when the sale
occurs.
425. Subsection 33H(2) would more broadly prohibit a person from selling hazardous
waste to a person outside Australia if:
the person sells the waste knowing, or being reckless as to whether, the waste is to be
exported by the body corporate; and
an export permit authorising the export of the waste is not in force when the sale
occurs.
426. The notes following subsection 33H(1) and (2) explain that the physical elements of
the offence in subsection 33H(3) are set out in these subsections.
427. Subsection 33H(3) would have the effect that a person who contravenes the
prohibition in subsection 33H(1) or 33H(2) would be committing a fault-based offence.
The maximum penalty for the offence would be 3 years imprisonment or 180 penalty
units, or both. A body corporate would be liable for five times this amount as a maximum
penalty (see subsection 4B(3) of the Crimes Act).
428. New subsection 33H(4) would have the effect of establishing a mirror civil penalty
provision which is contravened in circumstances where a person contravenes the
prohibition in subsection 33H(1) or 33H(2). The maximum penalty would be 360 penalty
units. A body corporate would be liable for five times this amount as a maximum penalty
(see subsection 82(5) of the Regulatory Powers Act).
429. The combination of fault-based offence and civil penalty provision would provide an
adequate deterrent from persons selling hazardous waste in the circumstances covered by
section 33H, which has the potential to cause significant harm. It is also appropriate to
include both civil and criminal penalties in order to provide flexibility for the
Commonwealth to enforce the prohibition appropriately without always needing to pursue
criminal penalties (noting that conviction for a criminal offence carries with it a range of
consequences beyond the immediate penalty). It is expected criminal proceedings would
be brought for conduct that contravenes subsections 33H(1) or 33H(2) and is at the more
serious end of the spectrum or that involves a higher degree of malfeasance.
79
430. The size of the maximum penalty for both the fault-based offence and the civil
penalty provision is appropriate as a deterrent. It reflects the seriousness of the conduct,
which could result in harm to human and environmental health. Such conduct may
undermine the integrity of the regulatory framework provided for by the Act. This
conduct may also result in the breach of Australia's obligations under the Basel
Convention which could damage Australia's international relations.
Item 5
431. Item 5 would amend the Act to insert a new heading before section 34 titled 'Division
1 - Ministerial orders'.
Item 6
432. Item 6 would amend the heading of section 34 of the Act to omit the words 'where
section 39 contravened' and substitute 'relating to the import of hazardous waste'.
433. This item is a consequential amendment to the amendments made by items 4 and 19
of this Schedule.
Item 7
434. Item 7 would amend section 34 of the Act to repeal existing subsections 34(1) and
34(2) and substitute a new subsections 34(1) and 34(2).
435. New subsection 34(1) would provide that if a person contravenes one of the
provisions set out in new subsection 34(2), the Minister may, in writing, order the person
to deal with the waste in a specified way.
436. New subsection 34(2) would list the provisions that, if contravened, would be grounds
for a ministerial order to be made under subsection 34(1). These provisions are subsection
33A(1), 33A(2), 33A(3), 33B(1), 33B(2), 33B(3), 38F(1) and 38G(1).
437. The effect of the amendment would be that if a person imports hazardous waste
without a permit, or in contravention of a permit or a permit condition, in contravention
of new sections 33A or 33B, the Minister may, in writing, order the person to deal with
the waste in a specified way. The order may include a requirement to export the waste
from Australia.
438. In addition, if a person contravenes an order made under new sections 38F or 38G to
import hazardous waste, the Minister may, in writing, order the person to deal with the
waste in a specified way.
439. The amendments made by item 7 would have the effect of expanding the current
power to make ministerial orders to deal with unlawful imports by removing the
requirement that an order can only be made in respect of hazardous waste that was
imported in breach of a permit or permit conditions where the Minister is satisfied that the
waste poses a significant risk of injury or damage to human beings or the environment.
80
This change is appropriate as it recognises that non-compliance with a permit or permit
condition may result in a breach of Australia's international obligations under the Basel
Convention. Allowing the Minister to make a ministerial order in respect of such
hazardous waste would improve compliance with the requirements of a permit or permit
conditions, which would ensure that waste is managed in a manner that protects human
health and the environment, consistently with Australia's international obligations.
Item 8
440. Item 8 would amend subsection 34(3) of the Act to remove the reference to subsection
34(2).
441. This item is a consequential amendment to the amendment made by item 7 and
recognises that the power to make ministerial orders to deal with unlawful imports would
be located in subsection 34(1) only.
Item 9
442. Item 9 would amend the heading of section 35 of the Act to omit the words 'where
section 40 contravened' and substitute 'relating to the export of hazardous waste'.
443. This item is a consequential amendment to the amendments made by items 4 and 19
of this Schedule.
Item 10
444. Item 10 would amend section 35 of the Act to repeal existing subsections 35(1) and
35(2) and substitute a new subsection 35(1) and 35(2).
445. New subsection 35(1) would provide that if a person contravenes one of the
provisions set out in new subsection 35(2), the Minister may, in writing, order the person
to deal with the waste in a specified way.
446. New subsection 35(2) would list the provisions that, if contravened, would be grounds
for a ministerial order to be made under subsection 35(1). These provisions are
subsections 33C(1), 33C(2), 33C(3), 33D(1), 33D(2) and 33D(3).
447. The effect of the amendment would be that if a person exports hazardous waste
without a permit, or in contravention of a permit or a permit condition, in contravention
of new sections 33C or 33D, the Minister may, in writing, order the person to deal with
the waste in a specified way. The order may include a requirement to import the waste to
Australia.
448. The amendments made by item 10 would have the effect of expanding the current
power to make ministerial orders to deal with unlawful exports by removing the
requirement that an order can only be made in respect of hazardous waste that was
exported in breach of a permit or permit conditions where the Minister is satisfied that the
waste poses a significant risk of injury or damage to human beings or the environment.
This change is appropriate as it recognises that non-compliance with a permit or permit
81
condition may result in a breach of Australia's international obligations under the Basel
Convention. Allowing the Minister to make a ministerial order in respect of such
hazardous waste would improve compliance with the requirements of a permit or permit
conditions, which would ensure that waste is managed in a manner that protects human
health and the environment, consistently with Australia's international obligations.
Item 11
449. Item 11 would amend subsection 35(3) of the Act to remove the reference to
subsection 35(2).
450. This item is a consequential amendment to the amendment made by item 10, and
recognises that the power to make ministerial orders to deal with unlawful exports would
be located in subsection 35(1) only.
Item 12
451. Item 12 would amend the heading of section 35A of the Act to omit the words 'where
section 40A contravened' and substitute 'relating to the transit of hazardous waste'.
452. This item is a consequential amendment to the amendments made by items 4 and 19
of this Schedule.
Item 13
453. Item 13 would amend section 35A of the Act to repeal existing subsections 35A(1)
and 35A(2) and substitute a new subsection 35A(1) and 35A(2).
454. New subsection 35A(1) would provide that if a person contravenes one of the
provisions set out in new subsection 35A(2), the Minister may, in writing, order the
person to deal with the waste in a specified way.
455. New subsection 35A(2) would list the provisions that, if contravened, would be
grounds for a ministerial order to be made under subsection 35A(1). These provisions are
subsections 33E(1), 33E(2), 33E(3), 33E(4), 33F(1), 33F(2), 33F(3) and 33F(4).
456. The effect of the amendment would be that if, in the course of carrying out a transit
proposal, a person brings hazardous waste into Australia waste, or exports hazardous
waste from Australia, without a permit, or in contravention of a permit or a permit
condition, in contravention of new sections 33E or 33F, the Minister may, in writing,
order the person to deal with the waste in a specified way. The order may include a
requirement to export the waste from Australia, or import the waste to Australia (as the
case may be).
457. The amendments made by item 13 would have the effect of expanding the current
power to make ministerial orders to deal with the unlawful carrying out of a transit
proposal by removing the requirement that an order can only be made in respect of
hazardous waste that was brought into Australia, or exported from Australia, in breach of
a permit or permit conditions where the Minister is satisfied that the waste poses a
82
significant risk of injury or damage to human beings or the environment. This change is
appropriate as it recognises that non-compliance with a permit or permit condition may
result in a breach of Australia's international obligations under the Basel Convention.
Allowing the Minister to make a ministerial order in respect of such hazardous waste
would improve compliance with the requirements of a permit or permit conditions, which
would ensure that waste is managed in a manner that protects human health and the
environment, consistently with Australia's international obligations.
Item 14
458. Item 14 would repeal existing subsection 35A(3) of the Act and substitute a new
subsection 35A(2). The effect of the amendment is to clarify that a ministerial order under
subsection 35A(1) includes the power to order the waste be exported, and to specify the
timeframe in which requirements in the order must be complied with.
459. This item is a consequential amendment to the amendment made by item 13.
Item 15
460. Section 36 of the Act allows the Minister to order a person to take such steps as the
Minister thinks necessary to remedy or mitigate damage if:
the person has contravened any of section 39, 40 or 40A (ie imported hazardous
waste, exported hazardous waste or carried out a transit proposal in respect of
hazardous waste, without a permit)
the Minister is satisfied that the contravention resulted in the waste causing significant
injury or damage to human beings or the environment.
461. The Minister cannot, however, order a person to pay compensation (subsection 36(2)).
462. The power to make an order under section 36 is necessary to ensure that persons who
contravene the Act and cause damage to humans or the environment are required to
remedy or mitigate that damage, in addition to the specific consequences that may result
from contravening the Act. This helps to ensure that the Act achieves its intended
environmental outcomes.
463. Item 15 would amend section 36 to repeal existing paragraph 36(1)(a) and substitute a
new paragraph 36(1)(a). The purposes of this amendment would be to expand the
contraventions of the Act for which a person may be ordered to remedy or mitigate any
damage caused to human beings or the environment. This would reflect the updated
prohibitions in new sections 33A, 33B, 33C and 33D, 33E and 33F.
464. Under section 36, as amended by item 15, the Minister would be able to order a
person to take such steps as the Minister thinks necessary to remedy or mitigate damage if
the person has contravened:
83
new subsections 33A(1), (2) and (3) - importing hazardous waste without a permit,
importing hazardous waste not in accordance with a permit, importing hazardous
waste not in compliance with a permit condition;
new subsections 33B(1), (2) and (3) - importing hazardous waste without a permit
causing injury or damage, importing hazardous waste not in accordance with a permit
causing injury or damage, importing hazardous waste not in compliance with a permit
condition causing injury or damage;
new subsections 33C(1), (2) and (3) - exporting hazardous waste without a permit,
exporting hazardous waste not in accordance with a permit, exporting hazardous
waste not in compliance with a permit condition;
new subsections 33D(1), (2) and (3) - exporting hazardous waste without a permit
causing injury or damage, exporting hazardous waste not in accordance with a permit
causing injury or damage, exporting hazardous waste not in compliance with a permit
condition causing injury or damage;
new subsections 33E(1), (2) and (3) - carrying out a transit proposal for hazardous
waste without a permit or notice, carrying out a transit proposal for hazardous waste
not in accordance with a permit, carrying out a transit proposal for hazardous waste
not in compliance with a permit condition;
new subsections 33F(1), (2) and (3) - carrying out a transit proposal for hazardous
waste without a permit or notice causing injury or damage, carrying out a transit
proposal for hazardous waste not in accordance with a permit causing injury or
damage, carrying out a transit proposal for hazardous waste not in compliance with a
permit condition causing injury or damage.
465. The existing requirement that the Minister can only make an order under section 36 if
satisfied that the contravention resulted in the waste causing significant injury or damage
to human beings or the environment would still remain. This limitation is appropriate
given the purpose of the order is to remedy or mitigate damage.
Item 16
466. Item 16 would amend the Act to repeal existing section 37.
467. This item is a consequential amendment to item 17, as the amendments made by that
item transfer the content of existing section 37 to new section 38B.
Item 17
468. Item 17 would amend Part 3 of the Act to repeal existing sections 38A and 38B and
insert a new Division 2 dealing with the consequences of contravening a ministerial order
made under section 34, 35, 35A or 38.
84
469. Existing section 38A is being repealed because its requirements are already covered
by the general administrative law requirement that the timeframe for requiring a person to
do something must be reasonable. Existing section 38B is being repealed because it is
being updated and replaced by new sections 38C amd 38D.
470. The purpose of this new Division is to ensure that appropriate offence and civil
penalty provisions apply to the contravention of orders, and that the Minister may also
order a person to remedy or mitigate damage caused by the contravention.
471. New Division 2 would contain new sections 38A, 38B, 38C, 38D, 38E, 38F, 38G, and
38H.
Section 38A - Orders to remedy or mitigate damage if order under section 34, 35, 35A or 38
not complied with
472. New section 38A would create an equivalent power to section 36 of the Act, which
would allow the Minister to order a person to take such steps as the Minister thinks
necessary to remedy or mitigate damage if the person has contravened another ministerial
order under section 34, 35, 35A or 38.
473. Consistent with section 36:
the Minister would only be able to exercise the power under new section 38A if the
Minister is satisfied that the contravention resulted in the waste causing significant
injury or damage to human beings or the environment; and
the Minister would not be able to order the person to pay compensation.
474. Providing a power for the Minister to make such an order is necessary to ensure that
where the damage is caused by non-compliance with a ministerial order (rather than by
the initial contravention of the Act), that damage can be the subject of mitigation or
remediation order. This helps to ensure that the Act achieves its intended environmental
outcomes.
475. The note following subsection 38A(1) would explain that a requirement to deal with
hazardous waste in a specified way can include the requirement to import or export the
waste.
Section 38B - Minister may take action and recover costs if order under section 34, 35, 35A,
36, 38 or 38A not complied
476. New subsection 38B(1) would provide that if the Minister makes an order under
section 34, 35, 35A, 36, 38 or 38A requiring a person to do something, and that person
does not do the thing as and when required by the order, the Minister may arrange for the
thing to be done.
477. New subsection 38B(2) would have the effect that if the Commonwealth incurred
costs because the Minister exercised the power under subsection 38B(1), the person who
85
failed to comply with the order is liable to pay the Commonwealth an amount equal to
those costs. This amount may be recovered by the Commonwealth as a debt due to the
Commonwealth in a court of competent jurisdiction.
478. New section 38B is not a new power. Rather, it replicates existing section 37 of the
Act, which would be repealed by item 16. However, new section 38B expands the scope
of the power to cover failure to comply with ministerial orders made under section 38 and
new section 38A. This is appropriate, as there is no ongoing justification for those
ministerial orders to be treated differently from ministerial orders made under sections 34,
35, 35A or 36.
Section 38C - Failure to deal with waste in contravention of order under section 34, 35 or
35A - basic contravention
479. New section 38C would create an offence and civil penalty provision that will apply
to a person who has been given an order under new section 34, 35 or 35A requiring the
person to deal with the waste in a specified way or by a specified time, and the person
fails to comply with the order.
480. New section 38C would not create a new prohibition. Rather it would replicate the
existing prohibition in subsection 38B(1), while updating the drafting to reduce
complexity and increase readability. New section 38C would also clarify the
consequences of breaching the prohibition in subsection 38C(1), by expanding the range
of available sanctions.
481. New subsection 38C(2) would have the effect that a person who contravenes the
prohibition in subsection 38C(1) would be committing a fault-based offence. The
maximum penalty for the offence would be 5 years imprisonment or 300 penalty units, or
both. A body corporate would be liable for five times this amount as a maximum penalty
(see subsection 4B(3) of the Crimes Act).
482. New subsection 38C(3) would have the effect that a person who contravenes the
prohibition in subsection 38C(1) would also be committing an offence of strict liability
with a maximum penalty of 60 penalty units.
483. Strict liability is proposed for this offence having regard to the Commonwealth Guide
to Framing Offences and the Scrutiny of Bills Committee 6th Report. Consistent with
these documents, strict liability is appropriate as:
the offence is not punishable by imprisonment;
the offence is subject to a maximum penalty of 60 penalty units for an individual;
the actions which trigger the offence are simple, readily understood and easily
defended. The offence is triggered if an entrusted person has been given an order
under section 34, 35 or 35A and fails to comply with the order;
86
the person affected would have previously been put on notice of the contravention
of the Act, due to the ministerial order having been made;
offences relating to the non-compliance with ministerial orders need to be dealt
with efficiently to ensure industry and community confidence in the regulatory
regime;
the offence will be subject to an infringement notice (see new section 56AB, as
inserted by Schedule 2 to the Bill);
the absence of strict liability may adversely affect the capacity to prosecute
offenders. Whether or not a defendant intentionally, recklessly or negligently
failed to comply with a ministerial order is generally a matter that is peculiarly
within the knowledge of the defendant alone. Proving the contrary beyond
reasonable doubt may require significant and difficult to obtain indirect and
circumstantial evidence;
ministerial orders play an important role in informing the Minister in relation to
those matters covered by the Act (particularly in relation to granting permit for the
import, export or transit of hazardous waste), which is a necessary part of ensuring
that the Bill remains an effective and efficient mechanism to both implement
Australia's obligations under the Basel Convention and to realise its intended
environmental benefits. Given ministerial orders can only be made once a
contravention of the Act has already occurred, non-compliance with ministerial
orders may result in significant environmental harm and could damage Australia's
international relations;
the person affected would be placed on notice to guard against the possibility of
contravention, which is likely to significantly enhance the effectiveness of the
enforcement regime in deterring the conduct in question;
484. The defence of honest and reasonable mistake of fact is available for strict liability
offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence
of strict liability does not make any other defence unavailable (see subsection 6.1(3) of
Schedule 1 to the Criminal Code).
485. New subsection 38C(4) would have the effect of establishing a mirror civil penalty
provision which is contravened in circumstances where a person contravenes the
prohibition in subsection 38C(1). The maximum penalty would be 600 penalty units. A
body corporate would be liable for five times this amount as a maximum penalty (see
subsection 82(5) of the Regulatory Powers Act.
486. The combination of fault-based offence, strict liability offence and civil penalty
provision would provide an adequate deterrent from person not complying with
ministerial orders, which has the potential to cause significant harm. It is also appropriate
to include both civil and criminal penalties in order to provide flexibility for the
87
Commonwealth to enforce the prohibition appropriately without always needing to pursue
criminal penalties (noting that conviction for a criminal offence carries with it a range of
consequences beyond the immediate penalty). It is expected criminal proceedings would
be brought for conduct that contravenes subsection 38C(1) and is at the more serious end
of the spectrum or that involves a higher degree of malfeasance.
487. The size of the maximum penalty for both the fault-based offence and the civil
penalty provision is appropriate as a deterrent. It reflects the seriousness of failing to
comply with a ministerial order requiring hazardous waste be dealt with in a specified
way or by a specified time, which could in turn result in harm to human and
environmental health. Such conduct may undermine the integrity of the regulatory
framework provided for by the Act. This conduct may also result in the breach of
Australia's obligations under the Basel Convention which could damage Australia's
international relations.
488. The maximum civil penalty of 600 penalty units is higher than the maximum penalty
available for the criminal offence. This is intended to ensure that it will act as a deterrent,
particularly for body corporates, and also recognises that being found liable to pay a civil
penalty does not attract imprisonment or a criminal conviction.
489. The first note following subsection 38C(1) would explain that the physical elements
of the fault based offence are set out in subsection 38C(1).
490. The second note following subsection 38C(1) would explain that a requirement to
deal with hazardous waste in a specified way may include the requirement to import or
export the waste.
Section 38D - Failure to deal with waste in contravention of order under section 34. 35 or
35A - injury or damage to human beings or environment
491. New section 38D would create an offence and civil penalty provision that will apply
to a person who has been given an order under new section 34, 35 or 35A requiring the
person to deal with the waste in a specified way or by a specified time, the person fails to
comply with the order, and the non-compliance injures or damages human beings or the
environment.
492. New section 38D would be a new prohibition. It would only apply if non-compliance
with ministerial order made under section 34, 35 or 35A results in injury or damage to
human beings or the environment. Non-compliance with a ministerial order that does not
result in injury or damage would contravene new section 38C instead.
493. New subsection 38D(2) would have the effect that a person who contravenes the
prohibition in subsection 38D(1) would be committing a fault-based offence. The
maximum penalty for the offence would be 8 years imprisonment or 500 penalty units, or
both. A body corporate would be liable for five times this amount as a maximum penalty
(see subsection 4B(3) of the Crimes Act).
88
494. New subsection 38D(3) would allow, in a trial for an offence against new subsection
38D(2), the trier of fact to find the defendant not guilty of that offence but guilty of the
offence in subsection 38C(2), provided the defendant has been provided procedural
fairness in relation to that finding. The purpose of this provision is to allow proceedings
for the aggravated offence in section 38D to revert to the basic contravention in
subsection 38C in the event that the aggravated circumstances - being that the conduct of
the defendant injured or damaged, or is likely to injure or damage, human beings or the
environment - cannot be proven beyond reasonable doubt.
495. New subsection 38D(4) would have the effect that a person who contravenes the
prohibition in subsection 38D(1) would also be committing an offence of strict liability
with a maximum penalty of 60 penalty units.
496. Strict liability is proposed for this offence having regard to the Commonwealth Guide
to Framing Offences and the Scrutiny of Bills Committee 6th Report. Consistent with
these documents, strict liability is appropriate as:
the offence is not punishable by imprisonment;
the offence is subject to a maximum penalty of 60 penalty units for an individual;
the actions which trigger the offence are simple, readily understood and easily
defended. The offence is triggered if an entrusted person has been given an order
under section 34, 35 or 35A, the person fails to comply with the order, and the
non-compliance injures or damages human beings or the environment;
the person affected would have previously been put on notice of the contravention
of the Act, due to the ministerial order having been made;
offences relating to the non-compliance with ministerial orders need to be dealt
with efficiently to ensure industry and community confidence in the regulatory
regime;
the offence will be subject to an infringement notice (see new section 56AB, as
inserted by Schedule 2 to the Bill);
the absence of strict liability may adversely affect the capacity to prosecute
offenders. Whether or not a defendant intentionally, recklessly or negligently
failed to comply with a ministerial order is generally a matter that is peculiarly
within the knowledge of the defendant alone. Proving the contrary beyond
reasonable doubt may require significant and difficult to obtain indirect and
circumstantial evidence;
ministerial orders play an important role in informing the Minister in relation to
those matters covered by the Act (particularly in relation to granting permit for the
import, export or transit of hazardous waste), which is a necessary part of ensuring
89
that the Bill remains an effective and efficient mechanism to both implement
Australia's obligations under the Basel Convention and to realise its intended
environmental benefits. Given ministerial orders can only be made once a
contravention of the Act has already occurred, non-compliance with ministerial
orders may result in significant environmental harm and could damage Australia's
international relations;
the person affected would be placed on notice to guard against the possibility of
contravention, which is likely to significantly enhance the effectiveness of the
enforcement regime in deterring the conduct in question.
497. The defence of honest and reasonable mistake of fact is available for strict liability
offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence
of strict liability does not make any other defence unavailable (see subsection 6.1(3) of
Schedule 1 to the Criminal Code).
498. New subsection 38D(5) would have the effect of establishing a mirror civil penalty
provision which is contravened in circumstances where a person contravenes the
prohibition in subsection 38D(1). The maximum penalty would be 1000 penalty units. A
body corporate would be liable for five times this amount as a maximum penalty (see
subsection 82(5) of the Regulatory Powers Act).
499. The combination of fault-based offence, strict liability offence and civil penalty
provision would provide an adequate deterrent from person not complying with
ministerial orders, which has the potential to cause significant harm. It is also appropriate
to include both civil and criminal penalties in order to provide flexibility for the
Commonwealth to enforce the prohibition appropriately without always needing to pursue
criminal penalties (noting that conviction for a criminal offence carries with it a range of
consequences beyond the immediate penalty). It is expected criminal proceedings would
be brought for conduct that contravenes subsection 38D(1) and is at the more serious end
of the spectrum or that involves a higher degree of malfeasance.
500. The size of the maximum penalty for both the fault-based offence and the civil
penalty provision is appropriate as a deterrent. It reflects the seriousness of failing to
comply with a ministerial order requiring hazardous waste be dealt with in a specified
way or by a specified time, and that results in injury or damage to human beings or the
environment. Such conduct may undermine the integrity of the regulatory framework
provided for by the Act. This conduct may also result in the breach of Australia's
obligations under the Basel Convention which could damage Australia's international
relations.
501. The maximum civil penalty of 1000 penalty units is higher than the maximum penalty
available for the criminal offence. This is intended to ensure that it will act as a deterrent,
particularly for body corporates, and also recognises that being found liable to pay a civil
penalty does not attract imprisonment or a criminal conviction.
90
502. The first note following subsection 38D(1) would explain that the physical elements
of the fault based offence are set out in subsection 38D(1).
503. The second note following subsection 38D(1) would explain that a requirement to
deal with hazardous waste in a specified way may include a requirement to import or
export the waste.
Section 38E - Failure to deal with waste in contravention of order under section 36 or section
38A
504. New section 38E would create an offence and civil penalty provision that will apply
to a person who has been given an order under section 36 or new section 38A requiring
the person to take steps to remedy or mitigate damage, and the person fails to comply
with the order.
505. New section 38E would create a new prohibition. It is appropriate that failure to
comply with a ministerial order to remedy or mitigate damage be an offence and breach
of a civil penalty provision; this will help to deter non-compliance with such orders which
will, in turn, result in better environmental outcomes.
506. New subsection 38E(2) would have the effect that a person who contravenes the
prohibition in subsection 38E(1) would be committing a fault-based offence. The
maximum penalty for the offence would be 5 years imprisonment or 300 penalty units, or
both. A body corporate would be liable for five times this amount as a maximum penalty
(see subsection 4B(3) of the Crimes Act).
507. New subsection 38E(3) would have the effect that a person who contravenes the
prohibition in subsection 38E(1) would also be committing an offence of strict liability
with a maximum penalty of 60 penalty units.
508. Strict liability is proposed for this offence having regard to the Commonwealth Guide
to Framing Offences and the Scrutiny of Bills Committee 6th Report. Consistent with
these documents, strict liability is appropriate as:
the offence is not punishable by imprisonment;
the offence is subject to a maximum penalty of 60 penalty units for an individual;
the actions which trigger the offence are simple, readily understood and easily
defended. The offence is triggered if an entrusted person has been given an order
under section 36 or 38A and fails to comply with the order;
the person affected would have previously been put on notice of the contravention
of the Act, due to the ministerial order having been made;
91
offences relating to the non-compliance with ministerial orders need to be dealt
with efficiently to ensure industry and community confidence in the regulatory
regime;
the offence would be subject to an infringement notice (see new section 56AB, as
inserted by Schedule 2 to the Bill);
the absence of strict liability may adversely affect the capacity to prosecute
offenders. Whether or not a defendant intentionally, recklessly or negligently
failed to comply with a ministerial order is generally a matter that is peculiarly
within the knowledge of the defendant alone. Proving the contrary beyond
reasonable doubt may require significant and difficult to obtain indirect and
circumstantial evidence;
ministerial orders play an important role in informing the Minister in relation to
those matters covered by the Act (particularly in relation to granting permit for the
import, export or transit of hazardous waste), which is a necessary part of ensuring
that the Bill remains an effective and efficient mechanism to both implement
Australia's obligations under the Basel Convention and to realise its intended
environmental benefits. Given ministerial orders can only be made once a
contravention of the Act has already occurred, non-compliance with ministerial
orders may result in significant environmental harm and could damage Australia's
international relations;
the person affected will be placed on notice to guard against the possibility of
contravention, which is likely to significantly enhance the effectiveness of the
enforcement regime in deterring the conduct in question.
509. The defence of honest and reasonable mistake of fact is available for strict liability
offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence
of strict liability does not make any other defence unavailable (see subsection 6.1(3) of
Schedule 1 to the Criminal Code).
510. New subsection 38E(4) would have the effect of establishing a mirror civil penalty
provision which is contravened in circumstances where a person contravenes the
prohibition in subsection 38E(1). The maximum penalty would be 600 penalty units. A
body corporate would be liable for five times this amount as a maximum penalty (see
subsection 82(5) of the Regulatory Powers Act).
511. The combination of fault-based offence, strict liability offence and civil penalty
provision would provide an adequate deterrent from person not complying with
ministerial orders, which has the potential to cause significant harm. It is also appropriate
to include both civil and criminal penalties in order to provide flexibility for the
Commonwealth to enforce the prohibition appropriately without always needing to pursue
criminal penalties (noting that conviction for a criminal offence carries with it a range of
consequences beyond the immediate penalty). It is expected criminal proceedings would
92
be brought for conduct that contravenes subsection 38E(1) and is at the more serious end
of the spectrum or that involves a higher degree of malfeasance.
512. The size of the maximum penalty for both the fault-based offence and the civil
penalty provision is appropriate as a deterrent. It reflects the seriousness of failing to
comply with a ministerial order requiring the person to mitigate or remedy damage
caused by their contravention of the Act, which could in turn result in serious harm to
human and environmental health. Such conduct may undermine the integrity of the
regulatory framework provided for by the Act. This conduct may also result in the breach
of Australia's obligations under the Basel Convention which could damage Australia's
international relations.
513. The maximum civil penalty of 600 penalty units is higher than the maximum penalty
available for the criminal offence. This is intended to ensure that it will act as a deterrent,
particularly for body corporates, and also recognises that being found liable to pay a civil
penalty does not attract imprisonment or a criminal conviction.
514. The note following subsection 38E(1) would explain that the physical elements of the
fault based offence are set out in subsection 38E(1).
Section 38F - Failure to deal with waste in contravention of order under section 38 - basic
contravention
515. New section 38F would create an offence and civil penalty provision that will apply to
a person who has been given an order under new section 38 requiring the person to deal
with hazardous waste in a specified way, and the person fails to comply with the order.
516. New section 38F would create a new prohibition. It is appropriate that failure to
comply with a ministerial order given under be an offence and breach of a civil penalty
provision; this will help to deter non-compliance with such orders which will, in turn,
result in better environmental outcomes. It would also align the consequences for breach
of all ministerial orders.
517. New subsection 38F(2) would have the effect that a person who contravenes the
prohibition in subsection 38F(1) would be committing a fault-based offence. The
maximum penalty for the offence would be 5 years imprisonment or 300 penalty units, or
both. A body corporate would be liable for five times this amount as a maximum penalty
(see subsection 4B(3) of the Crimes Act).
518. New subsection 38F(3) would have the effect that a person who contravenes the
prohibition in subsection 38F(1) would also be committing an offence of strict liability
with a maximum penalty of 60 penalty units.
519. Strict liability is proposed for this offence having regard to the Commonwealth Guide
to Framing Offences and the Scrutiny of Bills Committee 6th Report. Consistent with
these documents, strict liability is appropriate as:
93
the offence is not punishable by imprisonment;
the offence is subject to a maximum penalty of 60 penalty units for an individual;
the actions which trigger the offence are simple, readily understood and easily
defended. The offence is triggered if an entrusted person has been given an order
under section 38 and fails to comply with the order;
offences relating to the non-compliance with ministerial orders need to be dealt
with efficiently to ensure industry and community confidence in the regulatory
regime;
the offence would be subject to an infringement notice (see new section 56AB, as
inserted by Schedule 2 to the Bill);
the absence of strict liability may adversely affect the capacity to prosecute
offenders. Whether or not a defendant intentionally, recklessly or negligently
failed to comply with a ministerial order is generally a matter that is peculiarly
within the knowledge of the defendant alone. Proving the contrary beyond
reasonable doubt may require significant and difficult to obtain indirect and
circumstantial evidence;
ministerial orders play an important role in informing the Minister in relation to
those matters covered by the Act (particularly in relation to granting permit for the
import, export or transit of hazardous waste), which is a necessary part of ensuring
that the Bill remains an effective and efficient mechanism to both implement
Australia's obligations under the Basel Convention and to realise its intended
environmental benefits. Given ministerial orders can only be made once a
contravention of the Act has already occurred, non-compliance with ministerial
orders may result in significant environmental harm and could damage Australia's
international relations;
the person affected would be placed on notice to guard against the possibility of
contravention, which is likely to significantly enhance the effectiveness of the
enforcement regime in deterring the conduct in question.
520. The defence of honest and reasonable mistake of fact is available for strict liability
offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence
of strict liability does not make any other defence unavailable (see subsection 6.1(3) of
Schedule 1 to the Criminal Code).
521. New subsection 38F(4) would have the effect of establishing a mirror civil penalty
provision which is contravened in circumstances where a person contravenes the
prohibition in subsection 38F(1). The maximum penalty would be 600 penalty units. A
body corporate would be liable for five times this amount as a maximum penalty (see
subsection 82(5) of the Regulatory Powers Act.
94
522. The combination of fault-based offence, strict liability offence and civil penalty
provision would provide an adequate deterrent from person not complying with
ministerial orders, which has the potential to cause significant harm. It is also appropriate
to include both civil and criminal penalties in order to provide flexibility for the
Commonwealth to enforce the prohibition appropriately without always needing to pursue
criminal penalties (noting that conviction for a criminal offence carries with it a range of
consequences beyond the immediate penalty). It is expected criminal proceedings would
be brought for conduct that contravenes subsection 38F(1) and is at the more serious end
of the spectrum or that involves a higher degree of malfeasance.
523. The size of the maximum penalty for both the fault-based offence and the civil
penalty provision is appropriate as a deterrent. It reflects the seriousness of failing to
comply with a ministerial order requiring hazardous waste be dealt with in a specified
way or by a specified time, which could in turn result in harm to human and
environmental health. Such conduct may undermine the integrity of the regulatory
framework provided for by the Act. This conduct may also result in the breach of
Australia's obligations under the Bael Convention which could damage Australia's
international relations.
524. The maximum civil penalty of 600 penalty units is higher than the maximum penalty
available for the criminal offence. This is intended to ensure that it will act as a deterrent,
particularly for body corporates, and also recognises that being found liable to pay a civil
penalty does not attract imprisonment or a criminal conviction.
525. The first note following subsection 38F(1) would explain that the physical elements of
the fault based offence are set out in subsection 38F(1).
526. The second note following subsection 38F(1) would explain that a requirement to deal
with hazardous waste in a specified way may include the requirement to import or export
the waste.
Section 38G - Failure to deal with waste in contravention of order under section 38 - injury
or damage to human beings or the environment
527. New section 38G would create an offence and civil penalty provision that will apply
to a person who has been given an order under new section 38 requiring the person to
deal with the waste in a specified way, the person fails to comply with the order, and the
non-compliance injures or damages, or is likely to damage, human beings or the
environment.
528. New section 38G would be a new prohibition. It would only apply if non-compliance
with ministerial order made under section 38 results, or is likely to result, in injury or
damage to human beings or the environment. Non-compliance with a ministerial order
that does not, or is not likely to, result in injury or damage would contravene new section
38E instead.
95
529. Including this new prohibition would also align with consequences for breach of all
ministerial orders where the result is, or is likely to be, injury or damage that does not, or
is not likely to, result in injury or damage.
530. New subsection 38G(2) would have the effect that a person who contravenes the
prohibition in subsection 38G(1) would be committing a fault-based offence. The
maximum penalty for the offence would be 8 years imprisonment or 500 penalty units, or
both. A body corporate would be liable for five times this amount as a maximum penalty
(see subsection 4B(3) of the Crimes Act).
531. New subsection 38G(3) would allow, in a trial for an offence against new subsection
38G(2), the trier of fact to find the defendant not guilty of that offence but guilty of the
offence in subsection 38F(2), provided the defendant has been provided procedural
fairness in relation to that finding. The purpose of this provision is to allow proceedings
for the aggravated offence in section 38G to revert to the basic contravention in
subsection 38F in the event that the aggravated circumstances - being that the conduct of
the defendant injured or damaged, or is likely to injure or damage, human beings or the
environment - cannot be proven beyond reasonable doubt.
532. New subsection 38G(4) would have the effect that a person who contravenes the
prohibition in subsection 38G(1) would also be committing an offence of strict liability
with a maximum penalty of 60 penalty units.
533. Strict liability is proposed for this offence having regard to the Commonwealth Guide
to Framing Offences and the Scrutiny of Bills Committee 6th Report. Consistent with
these documents, strict liability is appropriate as:
the offence is not punishable by imprisonment;
the offence is subject to a maximum penalty of 60 penalty units for an individual;
the actions which trigger the offence are simple, readily understood and easily
defended. The offence is triggered if an entrusted person has been given an order
under section 38, the person fails to comply with the order, and the non-
compliance injures or damages human beings or the environment;
offences relating to the non-compliance with ministerial orders need to be dealt
with efficiently to ensure industry and community confidence in the regulatory
regime;
the offence would be subject to an infringement notice (see new section 56AB, as
inserted by Schedule 2 to the Bill);
the absence of strict liability may adversely affect the capacity to prosecute
offenders. Whether or not a defendant intentionally, recklessly or negligently
failed to comply with a ministerial order is generally a matter that is peculiarly
96
within the knowledge of the defendant alone. Proving the contrary beyond
reasonable doubt may require significant and difficult to obtain indirect and
circumstantial evidence.
ministerial orders play an important role in informing the Minister in relation to
those matters covered by the Act (particularly in relation to granting permit for the
import, export or transit of hazardous waste), which is a necessary part of ensuring
that the Bill remains an effective and efficient mechanism to both implement
Australia's obligations under the Basel Convention and to realise its intended
environmental benefits. Given ministerial orders can only be made once a
contravention of the Act has already occurred, non-compliance with ministerial
orders may result in significant environmental harm and could damage Australia's
international relations;
the person affected would be placed on notice to guard against the possibility of
contravention, which is likely to significantly enhance the effectiveness of the
enforcement regime in deterring the conduct in question;
534. The defence of honest and reasonable mistake of fact is available for strict liability
offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence
of strict liability does not make any other defence unavailable (see subsection 6.1(3) of
Schedule 1 to the Criminal Code).
535. New subsection 38G(5) would have the effect of establishing a mirror civil penalty
provision which is contravened in circumstances where a person contravenes the
prohibition in subsection 38G(1). The maximum penalty would be 1000 penalty units. A
body corporate would be liable for five times this amount as a maximum penalty (see
subsection 82(5) of the Regulatory Powers Act).
536. The combination of fault-based offence, strict liability offence and civil penalty
provision would provide an adequate deterrent from person not complying with
ministerial orders, which has the potential to cause significant harm. It is also appropriate
to include both civil and criminal penalties in order to provide flexibility for the
Commonwealth to enforce the prohibition appropriately without always needing to pursue
criminal penalties (noting that conviction for a criminal offence carries with it a range of
consequences beyond the immediate penalty). It is expected criminal proceedings would
be brought for conduct that contravenes subsection 38G(1) and is at the more serious end
of the spectrum or that involves a higher degree of malfeasance.
537. The size of the maximum penalty for both the fault-based offence and the civil
penalty provision is appropriate as a deterrent. It reflects the seriousness of failing to
comply with a ministerial order requiring hazardous waste be dealt with in a specified
way or by a specified time, and that results in injury or damage to human beings or the
environment. Such conduct may undermine the integrity of the regulatory framework
provided for by the Act. This conduct may also result in the breach of Australia's
97
obligations under the Basel Convention which could damage Australia's international
relations.
538. The maximum civil penalty of 1000 penalty units is higher than the maximum penalty
available for the criminal offence. This is intended to ensure that it will act as a deterrent,
particularly for body corporates, and also recognises that being found liable to pay a civil
penalty does not attract imprisonment or a criminal conviction.
539. The first note following subsection 38G(1) would explain that the physical elements
of the fault based offence are set out in subsection 38G(1).
540. The second note following subsection 38G(1) would explain that a requirement to
deal with hazardous waste in a specified way includes a requirement to import or export
the waste.
Section 38H - Failure to give information in contravention of order under this Part
541. Subsections 34(4), 35(4) and 35A(4) allow an order made by the Minister under
section 34, 35 or 35A to also require the person to give the Minister specified information
relating to the dealing with the waste. The person is required to provide the information
by a specified time and in a specified manner.
542. New section 38H would create an offence and civil penalty provision that will apply
to a person who contravenes an order requiring the person to give the Minister specified
information by a specified time and in a specified manner.
543. New subsection 38H(2) would have the effect that a person who contravenes the
prohibition in subsection 38H(1) would be committing an offence of strict liability with a
maximum penalty of 30 penalty units.
544. Strict liability is proposed for this offence having regard to the Commonwealth Guide
to Framing Offences and the Scrutiny of Bills Committee 6th Report. Consistent with
these documents, strict liability is appropriate as:
the offence is not punishable by imprisonment;
the offence is subject to a maximum penalty of 30 penalty units for an individual;
the actions which trigger the offence are simple, readily understood and easily
defended. The offence is triggered if a person is required, by an order under Part 3 of
the Act, to give the Minister specified information by a specified time and in a
specified manner, and fails to do so;
offences relating to the non-compliance with ministerial orders need to be dealt with
efficiently to ensure industry and community confidence in the regulatory regime, as
well as to ensure compliance with Australia's international obligations;
98
the offence would be subject to an infringement notice (see new section 56AB, as
inserted by Schedule 2 to the Bill);
the absence of strict liability may adversely affect the capacity to prosecute offenders.
Whether or not a defendant intentionally, recklessly or negligently did not provide the
information required by a ministerial order is generally a matter that is peculiarly
within the knowledge of the defendant alone. Proving the contrary beyond reasonable
doubt may require significant and difficult to obtain indirect and circumstantial
evidence.
ensuring ministerial orders are complied with is a necessary part of ensuring that the
Bill remains an effective and efficient mechanism to both implement Australia's
obligations under the Basel Convention and to realise its intended environmental
benefits. Given ministerial orders can only be made once a contravention of the Act
has already occurred, non-compliance with ministerial orders may result in significant
environmental harm and could damage Australia's international relations;
the person affected would be placed on notice to guard against the possibility of
contravention, which is likely to significantly enhance the effectiveness of the
enforcement regime in deterring the conduct in question;
545. The defence of honest and reasonable mistake of fact is available for strict liability
offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence
of strict liability does not make any other defence unavailable (see subsection 6.1(3) of
Schedule 1 to the Criminal Code).
546. New subsection 38H(3) would have the effect of establishing a mirror civil penalty
provision which is contravened in circumstances where a person contravenes the
prohibition in subsection 41A(1). The maximum penalty would be 240 penalty units.
547. New section 38H would not create a new prohibition. Rather it would replicate the
existing prohibition in subsection 38H(2), while updating the drafting to reduce
complexity and increase readability. New section 38H would also clarify that the offence
involved is a strict liability offence and insert a mirror civil penalty provision to expand
the range of available sanctions. The combination of a strict liability offence and civil
penalty provision would provide an adequate deterrent from failing to comply with
ministerial orders, which could undermine the compliance and enforcement mechanisms
in the Act. It is also appropriate to include both civil and criminal penalties in order to
provide flexibility for the Commonwealth to enforce the prohibition appropriately without
always needing to pursue criminal penalties (noting that conviction for a criminal offence
carries with it a range of consequences beyond the immediate penalty).
Item 18
548. Item 18 would amend the Act to repeal the heading of Part 4, as Part 4 is being
repealed.
99
549. The content of the offences in Part 4 (relating to the regulation of the import, export,
transit and sale of hazardous waste) are being updated and moved to new Part 2A (see
amendments made by item 4 of this Schedule).
Item 19
550. Item 19 would amend the Act to repeal sections 39, 40, 40A, 40AA and 40B.
551. The content of the offences in these sections (relating to the regulation of the import,
export, transit and sale of hazardous waste) are being updated and moved to new Part 2A
(see amendments made by item 4 of this Schedule).
Item 20
552. Section 41A of the Act makes it an offence for a person to export a substance or an
object to a foreign country if:
the substance or object is transported through a third country on the way to its
destination; and
the substance or object is not hazardous waste for the purposes of the Act, but is a
notifiable substance in relation to the transit country (i.e. the Minister is satisfied the
waste is a hazardous waste in the transit country under the law of that country, but not
under this Act); and
the transportation had not been approved under section 41B.
553. Section 41B sets out a mechanism for the Minister to approve, or refuse to approve,
the transportation of a notifiable substance or object through a foreign country.
554. Item 20 would repeal existing section 41A and substitute a new section 41A. The
content of the prohibition in new section 41A would be the same as for existing section
41A. However, new section 41A would update the drafting of the provision to reduce
complexity and would provide clarification as to the consequences of failing to comply
with the prohibition.
555. New subsections 41A(2) would have the effect that a person who contravenes the
prohibition in subsection 41A(1), would be committing a fault-based offence. The
maximum penalty for the offence would be imprisonment for 3 years or 180 penalty
units, or both.
556. New subsection 41A(3) would have the effect that a person who contravenes the
prohibition in subsection 41A(1) would also be committing an offence of strict liability
with a maximum penalty of 60 penalty units.
557. Strict liability is proposed for this offence having regard to the Commonwealth Guide
to Framing Offences and the Scrutiny of Bills Committee 6th Report. Consistent with
these documents, strict liability is appropriate as:
100
the offence is not punishable by imprisonment;
the offence is subject to a maximum penalty of 60 penalty units for an individual;
the actions which trigger the offence are simple, readily understood and easily
defended. The offence is triggered if a person transports a notifiable substance or
object through a foreign country without approval;
offences relating to the transboundary movement of waste need to be dealt with
efficiently to ensure industry and community confidence in the regulatory regime, as
well as to ensure compliance with Australia's international obligations;
the offence would be subject to an infringement notice (see new section 56AB, as
inserted by Schedule 2 to the Bill);
the absence of strict liability may adversely affect the capacity to prosecute offenders.
Whether or not a defendant intentionally, recklessly or negligently transported a
notifiable substance or object through a foreign country without approval is generally
a matter that is peculiarly within the knowledge of the defendant alone. Proving the
contrary beyond reasonable doubt may require significant and difficult to obtain
indirect and circumstantial evidence;
providing, and complying with, appropriate controls on the transboundary movement
of notifiable substance is a necessary part of ensuring that the Bill remains an
effective and efficient mechanism to both implement Australia's obligations under the
Basel Convention and to realise its intended environmental benefits. If such
substances or objects are transported through foreign countries without approval, it
may result in significant environmental harm and could damage Australia's
international relations;
the person affected will be placed on notice to guard against the possibility of
contravention, which is likely to significantly enhance the effectiveness of the
enforcement regime in deterring the conduct in question.
558. The defence of honest and reasonable mistake of fact is available for strict liability
offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence
of strict liability does not make any other defence unavailable (see subsection 6.1(3) of
Schedule 1 to the Criminal Code).
559. New subsection 41A(4) would have the effect of establishing a mirror civil penalty
provision which is contravened in circumstances where a person contravenes the
prohibition in subsection 41A(1). The maximum penalty would be 360 penalty units.
560. The combination of fault-based offence, strict liability offence and civil penalty
provision would provide an adequate deterrent from persons transporting notifiable
101
substances or objects through foreign countries without approval, which has the potential
to cause significant harm. It is also appropriate to include both civil and criminal penalties
in order to provide flexibility for the Commonwealth to enforce the prohibition
appropriately without always needing to pursue criminal penalties (noting that conviction
for a criminal offence carries with it a range of consequences beyond the immediate
penalty). It is expected criminal proceedings would be brought for conduct that
contravenes subsection 41A(1) and is at the more serious end of the spectrum or that
involves a higher degree of malfeasance.
Item 21
561. Section 57 of the Act lists the decisions that are subject to merits review in the
Administrative Appeals Tribunal.
562. Item 21 would amend section 57 of the Act to insert new paragraphs 57(ea) and (eb).
New paragraphs 57(ea) and (eb) would have the effect that a decision whether to give a
notice under subsection 33G(1), and a decision to revoke a notice under subsection
33G(4), is a reviewable decision.
563. A notice under subsection 33G(1) can only be given in respect of the carrying out of a
transit proposal in connection with the movement of hazardous waste from one OECD
country to another OECD country for recovery operations, and has the effect that a transit
permit is not required for the proposal.
564. This item is consequential to the amendments made by item 4 of this Schedule and is
consistent with Commonwealth policy that all administrative decisions made under an
Act should be merits reviewable unless there is a strong reason a particular decision not to
be subject to merits review.
Item 22
565. Section 57 of the Act lists the decisions that are subject to merits review in the
Administrative Appeals Tribunal.
566. Existing paragraph 57(f) has the effect that decisions to issue a ministerial order under
section 34, 35, 35A or 36 requiring a person to do things are reviewable decisions.
567. Item 22 would amend paragraph 57(f) to include the decision to issue a ministerial
order under new section 38A requiring a person to do things as a reviewable decision.
568. This item is consequential to the amendments made by item 17 of this Schedule and is
consistent with Commonwealth policy that all administrative decisions made under an
Act should be merits reviewable unless there is a strong reason a particular decision not to
be subject to merits review.
102
Item 23
569. Item 23 would amend the Act to insert a new section 58F after existing section 58E.
570. New section 58F would clarify that where a provision in the Act provides that a
person contravening another provision of the Act (the conduct provision) commits an
offence or civil penalty provision:
the reference to the contravention of an offence or civil penalty provision includes a
reference to a contravention of the conduct provision. This is because the conduct
provision will set out the relevant physical elements of the offence or civil penalty
provision that is being referenced;
for the purposes of applying Chapter 2 of Schedule 1 to the Criminal Code, the
physical elements of the offence are set out in the conduct provision.
571. The note after new section 58F explains that Chapter 2 of Schedule 1 to the Criminal
Code Act sets out general principles of criminal responsibility. This includes requiring all
criminal offences to have physical elements and fault elements.
572. The purpose of new section 58F is to make clear what constitutes the physical
elements of offences under the Act.
Part 2 - Transitional and saving provisions
Item 24
573. Item 24 is a saving provision that deals with contraventions occurring, and ministerial
orders made, prior to the commencement of the Bill.
574. Sub-item 24(1) would have the effect that the old law continues to apply, on and after
the commencement of the Bill, in relation to:
a contravention of Part 4 of the old law occurring before that commencement; and
an order made under Part 3 of the old law before that commencement; and
an order made under Part 3 of the old law on an after that commencement, in relation
to a contravention of Part 4 of the old law occurring before that commencement.
575. The old law, for the purposes of this item, would mean the following parts of the Act,
as it was immediately prior to the commencement of the Bill:
Part 3;
Part 4 (other than section 41);
103
Any other provision to the extent that it relates to Parts 3 or 4 (other than section 41 or
Part 5) (sub-item 24(2)).
576. The intent is that contraventions occurring prior to the Act being amended are dealt
with under the Act as it was at the time of the contravention. This means that, for
example:
if a person contravenes subsection 39(1) of the old law (import without a permit)
before the commencement of the Bill, that person would be subject to (and could be
prosecuted under) subsection 39(1) of the old law even after the Bill commences and
that section is otherwise repealed. The Minister will also be able to make an order
under section 34 of the old law on or after the commencement of the Bill, even though
section 34 would be amended by the Bill. This, in turn, means that if the person does
not comply with the section 34 order, the person will be subject to the offence
provision in section 38B of the Act as it was immediately prior to the Bill
commencing, whether the contravention of section 38B occurs before or after the
commencement.
if the Minister made an order before the commencement under section 34 of the old
law in relation to the contravention, that order will continue in force on and after the
commencement of the Bill, but will still be governed by the Act as it was immediately
prior to the Bill commencing. This, in turn, means that if the person does not comply
with the section 34 order, the person will be subject to the offence provision in section
38B of the Act as it was immediately prior to the Bill commencing, whether the
contravention of section 38B occurs before or after the commencement;
if a person contravenes new subsection 33A(1) (import without a permit) on or after
the commencement, that person will be subject to that offence provision as well as the
amended Ministerial order provision (section 34 as amended) and amended
contravention of order provisions (new sections 38A, 38B, 38C, 38D and existing
section 36).
577. The note after sub-item 24(1) explains that the amendments made by Part 1 of
Schedule 4 apply in relation to contraventions of the Act occurring on or after the
commencement of those amendments.
578. The note after sub-item 24(2) refers the reader to the Part 2 of Schedule 2 for
application and savings provisions dealing with monitoring powers, investigation powers,
audit powers and injunctions and how those powers apply to contraventions occurring
before the commencement of the Bill.
Item 25
579. Item 24 is a transitional provision that deals with transit notifications given prior to
the Act being amended.
104
580. It would have the effect that a notification given under existing paragraph 40(1)(b) of
the Act that a transit proposal does not require a transit permit, and that is in force
immediately prior to the commencement of the Bill, continues in force and may be dealt
with on and after that date as if it were a notice given under subsection 33G(1) of the Act.
581. Item 25 is a savings provision that deals with contraventions that occurred, and
ministerial orders that were given, prior to the Act being amended.
582. It would have the effect that:
ministerial orders made in relation to contraventions of the Act that occurred prior to
the Act being amended would need to comply the Act with existing sections 34, 35,
35A, 36 and 38; and
existing sections 37, 38B and 39(1)(3) continue to apply in relation to ministerial
orders that were made prior to the Act being amended, or that relate to contraventions
that occurred prior to the Act being amended.
Part 3 - Contingent Amendments
Item 26
583. Item 26 is a contingent amendment. The purpose of this amendment is to remove the
reference to Federal Circuit Court from new paragraph 38B(2)(b) and substitute a
reference to the Federal Circuit and Family Court of Australia (Division 2). This will
ensure that the reference is correct, up to date and consistent with the Federal Circuit and
Family Court of Australia Act 2021 once it commences.
SCHEDULE 5 - OTHER AMENDMENTS
General outline
584. Schedule 5 would make a number of amendments to the Act to streamline and reduce
its complexity while clarifying its operations and still ensuring the standard of
environmental protection remains high.
Details on the amendments
Part 1 - Australian waters
585. Part 1 (items 1 to 3) would substitute new definitions of Australia and Australian
waters into the Act following amendments to those terms in the Acts Interpretation Act.
The amendments made by this Part do not change the policy intent of the Act in relation
to either of these terms.
Item 1
586. Item 1 would repeal the existing definition of Australia in section 4 of the Act and
substitute a new definition of the term.
105
587. The new definition would clarify that Australia, when used in a geographical sense
for the purposes of the Act, includes the external territories but does not include
Australian waters.
588. This amendment is necessary to establish a clear contrary intention to the Acts
Interpretation Act, which defines Australia to include the coastal sea, but not to include
the external Territories.
589. Australian waters would be defined in the Act to cover the same area as the coastal
sea under the Acts Interpretation Act (see amendments made by item 2 of this Schedule).
It is important that the term Australia not include Australian waters for the purposes of
the Act, as the intention is that, consistent with Australia's obligations under the Basel
Convention, movements of hazardous waste through Australian waters that are not
intended to land in Australia do not require a permit under the Act.
Item 2
590. Item 2 would repeal the existing definition of Australian waters in section 4 of the
Act and substitute a new definition of the term.
591. The new definition would clarify that Australian waters, for the purposes of the Act,
means the coastal sea of Australia and of each external Territory. This is consistent with
Australia, for the purposes of the Act, including the external Territories.
592. The new definition would further clarify that, for the purposes of the Act, the concepts
of the coastal sea of Australia and the coastal sea of each external Territory have the same
meaning as in section 15B of the Acts Interpretation Act. Under section 15B of the Acts
Interpretation Act, the coastal sea of Australia or of an external Territory covers the
territorial sea of Australia (or the relevant external Territory) and the sea on the landward
side of the territorial sea, but not waters within the limits of any State or Territory. This
definition reflects the existing definition of Australian waters in the Act. Accordingly, the
purpose of this amendment is to update the terminology for consistency with the Acts
Interpretation Act rather than to change any policy.
Item 3
593. Item 3 would repeal the note after subsection 4B(1) and substitute a new note that
explains that, for the purposes of the Act, Australia does not include Australian waters.
This amendment is consequential to the amendment made by item 1.
Part 2 - Commenting on permit applications
594. Part 2 (items 4 to 21) would amend the Act to insert a process for the public to
comment on applications for Basel permits and special permits, applications to vary such
permits, and notices to vary such applications. The Minister would be required to have
regard to any relevant comments received when deciding whether to grant the permit or
variation. This will result in increased transparency and ensure that the Minister has all
relevant information before them when deciding whether to grant a Basel or special
106
permit or variation. It will also formalise the existing comment process which occurs
administratively.
Division 1 - Amendments
Item 4
595. Item 4 would amend subsection 17(1) of the Act to omit the words 'the Minister is
satisfied'. These words would be inserted directly into paragraphs 17(1)(a), 17(1)(ba),
17(1)(c) and 17(1)(d) and subparagraphs 17(1)(b)(i) and (ii) (see amendments made by
items 5, 7, 9 and 10 of this Schedule) and is a consequential amendment to the
amendment made by item 11. There would be no change to the test for granting a Basel
import or export permit.
Item 5
596. Item 5 would amend paragraph 17(1)(a) of the Act to insert the words 'the Minister is
satisfied' at the start of the paragraph. This item is a consequential amendment to the
amendments made by items 4 and 11 and would not change the test for granting a Basel
import or export permit.
Item 6
597. Item 6 would amend paragraph 17(1)(b) of the Act to omit 'if the permit sought is'
and substitute 'in the case of'. This is a drafting style change only and would not change
the test for granting a Basel import or export permit.
Item 7
598. Item 7 would amend subparagraphs 17(1)(b)(i) and 17(1)(b)(ii) of the Act to insert the
words 'the Minister is satisfied' at the start of each subparagraph. This item is a
consequential amendment to the amendments made by items 4 and 11 and would not
change the test for granting a Basel import or export permit.
Item 8
599. Item 8 would amend paragraph 17(1)(ba) of the Act to omit 'if the permit sought is'
and substitute 'in the case of'. This is a drafting style change only and would not change
the test for granting a Basel import or export permit.
Item 9
600. Item 9 would amend paragraph 17(1)(ba) of the Act to insert the words 'the Minister
is satisfied' at the start of the paragraph. This item is a consequential amendment to the
amendments made by items 4 and 11 and would not change the test for granting a Basel
import or export permit.
Item 10
601. Item 10 would amend paragraphs 17(1)(c) and (d) of the Act to insert the words 'the
Minister is satisfied' at the start of each paragraph. This item is a consequential
amendment to the amendments made by items 4 and 11 and would not change the test for
granting a Basel import or export permit.
107
Item 11
602. Section 17 of the Act requires the Minister to grant a Basel import or export permit if
satisfied of the matters in subsection 17(1), and where none of the grounds for refusal in
subsections 17(2) to (8) are met. This includes being satisfied that dealing with the waste
in accordance with the import proposal or export proposal would be consistent with the
environmentally sound management of hazardous waste.
603. Item 11 would amend section 17 of the Act to insert a new paragraph 17(1)(e). New
paragraph 17(1)(e) would require the Minister to take into account any relevant public
comments received in response to an invitation to comment on the permit application (or
notice to vary the permit application) when deciding whether to grant the import or export
permit. Item 17 of this Schedule would require such an invitation to be published at the
same time as the particulars of the relevant application or notice are published.
604. The Minister would also be required to take into account any relevant public
comments received in response to an invitation to comment on an application to vary a
Basel permit (or notice to vary such an application) when deciding whether to grant the
variation (see amendments made by item 29 of this Schedule).
605. It is intended that an equivalent amendment would also be made to each set of Article
11 Regulations (including the OECD Regulations) to ensure that the Minister is also
required to take into account any relevant public comments received when deciding
whether to grant or varying a special export or import permit.
Item 12
606. Item 12 would amend subsection 17A(2) of the Act to omit the words 'the Minister is
satisfied'. These words would be inserted directly paragraphs 17A(2)(a), 17A(2)(b) and
17A(2)(c) (see amendments made by item 13 of this Schedule) and is a consequential
amendment to the amendment made by item 14. There would be no change to the test for
granting a Basel transit permit.
Item 13
607. Item 13 would amend paragraphs 17A(2)(a) to (c) of the Act to insert the words 'the
Minister is satisfied' at the start of each paragraph. This item is a consequential
amendment to the amendments made by items 12 and 14 and would not change the test
for granting a Basel transit permit.
Item 14
608. Section 17A of the Act requires the Minister to grant a Basel transit permit if satisfied
of the matters in subsection 17A(2), and where none of the grounds for refusal in
subsections 17A(4) or (5) are met. This includes being satisfied that carrying out the
transit proposal will not pose a significant risk of injury or damage to human beings or the
environment.
609. Item 14 would amend section 17A of the Act to insert a new paragraph 17A(2)(d).
New paragraph 17A(2)(d) would require the Minister to take into account any relevant
108
public comments received in response to an invitation to comment on the permit
application (or notice to vary the permit application) when deciding whether to grant the
transit permit. Item 17 of this Schedule would require such an invitation to be published
at the same time as the particulars of the relevant application or notice are published.
610. The Minister would also be required to take into account any relevant public
comments received in response to an invitation to comment on an application to vary a
Basel transit permit (or notice to vary such an application) when deciding whether to
grant the variation (see amendments made by item 29 of this Schedule).
611. It is intended that an equivalent amendment would also be made to the each set of
Article 11 Regulations (including the OECD Regulations) to ensure that the Minister is
also required to take into account any relevant public comments received when deciding
whether to grant or varying a special transit permit.
Item 15
612. Item 15 would amend section 33 of the Act to insert a heading before subsection
33(1). The heading would reflect that subsection 33(1) contains a requirement to publish
information. This item would make no substantive change to the operation of the
provision.
Item 16
613. Item 16 would amend subsection 33(1) of the Act to omit the words 'Subject to
subsection (2), the' and substitute 'The'. This amendment is consequential to the
amendment made by item 11. It is intended to update the drafting of the provision in line
with modern drafting conventions and would not change the effect of the provision.
Item 17
614. Subsection 33(1) of the Act requires the Minister to cause to be published certain
particulars of applications, notices and decisions made under the Act. This includes a
requirement to publish particulars of each application for a Basel or special permit or for
a variation for a Basel or special permit, and each notice to vary such an application, that
is received by the Minister (see paragraph 33(1)(a)).
615. Item 17 would amend section 33 of the Act to insert a new paragraph 33(1)(a). New
paragraph 33(1)(a) would have the effect that particulars of an application or notice that
are published under paragraph 33(1)(a) would need to be accompanied by an invitation
for members of the public to comment on the application or notice (as the case may be)
within 15 business days.
616. The Minister would be required to take any relevant comments received into account
when deciding to grant the permit or variation (see amendments made by items 11, 14 and
29 of this Schedule).
109
617. This process will formalise the existing administrative comment process and will
ensure that the Minister has all relevant information before them when deciding to grant
the permit or variation.
618. Item 19 of this Schedule would amend the Act to set out circumstances where the
requirement to publish an invitation seeking public comment does not apply.
Item 18
619. Item 18 would amend section 33 of the Act to insert a heading for subsection 33(2).
The heading would clarify that subsection 33(2) contains exceptions to the requirement to
publish the particulars listed in subsection 33(1) in circumstances where publication
would be contrary to the public interest.
620. This amendment is necessary to clarify the drafting of exceptions to the publication
requirement as items 20 and 32 both set out additional exceptions that do not relate to
public interest matters.
Item 19
621. Item 19 would omit the words 'The Minister is not required to publish' from
subsection 33(2) and substitute the words 'Subsection (1) does not apply to'. This
amendment is intended to update the drafting of the provision in line with modern
drafting conventions and would not change the effect of the provision.
Item 20
622. Item 20 would amend section 33 of the Act to insert a new subsection 33(2A). New
subsection 33(2A) would create an exception to the requirement to publish an invitation
seeking public comment on a permit or variation application or a notice to vary such an
application.
623. Under new subsection 33(2A), an invitation seeking public comment would not be
required to be published if the Minister is satisfied that the invitation would be
inappropriate because of exceptional circumstances, or that it would not be in the public
interest to publish the invitation. An invitation would also not be required to be published
in relation to an application for a permit variation, or a notice to vary such an application,
that is of a minor or technical nature.
Division 2 - Application provision
Item 21
624. Item 21 is an application provision that has the effect that the amendments made by
items 4 to 20 would apply in relation to:
an application for a Basel permit or a special permit, or
a notice to vary such an application,
that is received by the Minister on or after the commencement of the Bill.
110
Part 3 - Granting, revoking or varying Basel permits
625. Part 3 of Schedule 5 (items 22 to 30) would amend the Act to clarify, streamline and
simplify the requirements concerning:
the timeframe for granting Basel permits;
variation of Basel permits, including the timeframes for making variations;
revocation of Basel permits.
626. The amendments in Part 3 are necessary as the existing drafting of the Act concerning
these matters is outdated and unnecessarily complex, resulting in provisions that are
difficult for readers to properly understand.
Division 1 - Amendments
Item 22
627. Item 22 would amend section 4 of the Act to repeal the definition of application day,
as this definition is no longer needed. This is because the term is being replaced by the
new term decision day, as inserted by item 23 of this Schedule.
Item 23
628. Item 23 would amend section 4 of the Act to insert a new definition of decision
period.
629. The decision period, in relation to a Basel permit application, would be the period
referred to in new subsection 16(1), but as paused or extended as necessary under any of:
new section 15 (where further information is requested);
new section 16A (where a necessary consent has not been received);
new section 16B (where the Minister thinks it will take more than 60 days to decide
whether to grant the permit and extends the decision period for another 60 days);
new section 16C (where the proposal is the subject of a referral under Part 11 of the
EPBC Act); or
new section 16D (where the Minister and the applicant agree in writing to the
extension).
630. New section 15 would be inserted into the Act by item 24 of this Schedule, while new
sections 16, 16A, 16B, 16C and 16D would be inserted into the Act by item 26 of this
Schedule.
111
631. The decision period, in relation to an application to vary a Basel permit, would be the
period referred to in new subsection 26B(1), but as paused or extended as necessary under
new Subdivision C of Division 4 of Part 2 of the Act.
632. New Subdivision C would be inserted by item 29 of the schedule (see below) and
contains the following provisions allowing for the decision period for a variation
application to be paused or extended:
new section 26A (where further information is requested);
new section 26C (where a necessary consent has not been received);
new section 26D (where the Minister thinks it will take more than 60 days to decide
whether to grant the variation and extends the decision period for another 60 days);
new section 26E (where the proposal is the subject of a referral under Part 11 of the
EPBC Act); or
new section 26F (where the Minister and the applicant agree in writing to the
extension).
633. It is intended that equivalent amendments would be made to each set of Article 11
Regulations (including the OECD Regulations) to clarify the decision period for special
permits.
Item 24
634. Item 24 would amend the Act to repeal existing section 15 and substitute a new
section 15.
635. Section 15 would allow the Minister to request the applicant provide further
information in relation to an application. The request must be made within 60 days of the
Minister receiving the application.
636. If the Minister requests additional information of an applicant under section 15, the
decision period for the application would be paused until the request is complied with. If
the request is not complied with in 60 days, the application is taken to be withdrawn.
Item 25
637. Item 25 would amend the Act to repeal subsection 15A(3). This is necessary because
the requirement in existing subsection 15A(3) - to notify the competent authority of the
country to which hazardous waste is to be exported under an export proposal of certain
information prescribed in the regulations - is being transferred to new section 16A.
638. The purpose of this change in drafting is to improve the clarity of the provisions.
There would be no change to the substantive requirement covered by the existing
subsection 15A(3).
112
Item 26
639. Item 26 would amend the Act to repeal section 16 and substitute new sections 16,
16A, 16B, 16C and 16D.
640. Existing section 16 of the Act sets out the timeframes applicable for a decision
whether to grant a Basel permit under sections 17 (for Basel import or export permits) or
17A (for Basel transit permits). However, the drafting of section 16 is outdated and
unnecessarily complicated, resulting in the requirements and operation of the section
being difficult to understand. The purpose of item 26 is to update and simplify the
drafting of these provisions, so as to allow readers to more easily understand the
applicable timeframes for permit applications to be decided, and when the decision period
may be paused or extended.
641. The only change that item 26 would make to the substantive operation of existing
section 16 is to allow the Minister to extend the decision period for Basel export permits
for an additional 60 days if they think it will take more than 60 days to decide whether to
grant the permit. This power already existed for Basel import permits and Basel transit
permits and the absence of such a power for Basel export permits appears to have been an
oversight in the existing section 16. This change would ensure that the decision period for
all kinds of Basel permit applications may be extended for 60 days where necessary,
which streamlines the process and reduces complexity. It would also reduce the risk of a
deemed refusal of a permit under subsection 16(2).
Section 16 - Period for making decision on application for Basel permit - default period
642. New subsection 16(1) would provide that the Minister must decide whether to grant a
Basel permit within 60 days from the day the Minister receives the application. This is the
default decision period, that can be paused or extended under any of new sections 16A,
16B, 16C or 16D.
643. New subsection 16(2) would have the effect if the Minister has not decided whether to
grant the permit before the end of the decision period (including as paused or extended
under new sections 16A, 16B, 16C or 16D), the Minister is taken to have refused the
permit. The deemed refusal provided by this subsection is consistent with the operation of
existing section 16 of the Act.
Section 16A - Period for making decision on application for Basel permit - extensions for
Basel export permits
644. New section 16A would provide for the decision period to be extended for Basel
export permits in the situation where the competent authority of the receiving country, or
of a transit country, has not yet given or refused consent to the proposal. This extension of
the decision period recognises that:
Australia's obligations under the Basel Convention prevent the Minister from granting
an export permit unless both the receiving country and any transit countries have
consented to the export; and
113
the timing of a competent authority's consent or refusal of consent is not within the
control of the Minister or the applicant.
645. Subsection 16A(1) would require the Minister, within 21 days after receiving an
application for a Basel export permit, to notify the competent authority of the receiving
country and of any transit countries of such information as is prescribed in the regulations
made for the purposes of that subsection. This requirement is currently found in
subsection 15A(3), however is being moved to new section 16A to streamline the
drafting.
646. Subsection 16A(2) would have the effect that if the competent authority of either the
receiving country or of any transit country has neither given nor refused consent by the
end of the 46th day of the decision period, the decision period is paused until the earlier
of:
the day the relevant competent authority provides consent or refuses consent, and
12 months from the day the Minister received the application.
647. Subsection 16A(3) would clarify that, for foreign countries that are parties to the
Basel Convention, a reference to a consent is a reference to a consent given in accordance
with the Basel Convention.
Section 16B - Period for making decision on application for Basel permit - extensions for
Basel permits
648. New section 16B would provide for the decision period to be extended for Basel
permits where the Minister thinks that it will take more than 60 days to decide whether to
grant the permit. Where this is the case, the Minister may extend the decision period for a
further 60 days.
649. As set out above, this section would apply to Basel export permits, Basel import
permits and Basel transit permits.
650. If the Minister decides, under this section, to extend the decision period for a Basel
permit for an additional 60 days, they must notify the following entities of the extension
as soon as practicable:
the applicant;
for applications for Basel import permits - the competent authority of the country
from which the waste is proposed to be exported;
for applications for Basel export permits - the competent authority of the receiving
country and the competent authority of any transit countries.
114
Section 16C - Period for making decision on application for Basel permit - referrals under
the Environment Protection and Biodiversity Conservation Act 1999
651. New section 16C would provide for the decision period to be paused for Basel permits
where the proposal that is the subject of the application has been referred for assessment
under Part 11 of the EPBC Act. This extension recognises that assessment under the
EPBC Act will address matters that are relevant to the decision whether to grant the
permit, including whether the proposal is likely to significant impact the environment.
Advice provided under Part 11 of the EPBC Act may also contain recommended
conditions that the Minister may decide to impose on the Basel permit, if granted.
652. Accordingly, the purpose of new section 16C is to ensure that the decision period is
paused until the corresponding EPBC Act process is completed (whether by way of
advice being provided under section 163 of that Act, or a decision that advice is not
required being made under section 161A of that Act), so that the Minister will have all
relevant information before them when deciding whether to grant the permit.
653. The note following new section 16C explains the purpose of the process in Part 11 of
the EPBC Act.
Section 16D - Period for making decision on application for Basel permit - extension agreed
with applicant
654. New section 16D would allow the Minister and the applicant to agree in writing to
extend the decision period for a Basel permit. There would be no time limit on the
extension that may be agreed.
Item 27
655. Item 27 would amend the Act to insert two notes following subsection 22(2D).
656. The first note would explain that a condition that could be imposed on a Basel permit
under section 22 may include a requirement to comply with the condition on or before a
particular day.
657. The second note would explain that a condition could be imposed on a permit under
section 22 when a permit that is granted, or under Division 4 when the permit is varied.
658. These notes are being inserted to provide further clarity on these matters.
Item 28
659. Item 28 would amend Division 4 of Part 2 of the Act to repeal existing section 24, and
substitute new Subdivision A (new sections 24, 24A, 24B and 24C).
660. Existing section 24 sets out the processes and requirements for revoking a Basel
permit. However, the drafting of section 24 is outdated and unnecessarily complicated,
resulting in the requirements and operation of the provisions being difficult to understand.
The purpose of item 28 is to update and simplify the drafting of these provisions, so as to
allow readers to more easily understand the processes and requirement for revoking Basel
115
permits. Where possible, the intention is also to streamline the processes and
requirements of revoking Basel permits with those for varying Basel permits on the
Minister's initiative (see amendments made by item 29 of this Schedule).
661. The only changes that item 28 would make to the substantive operation of existing
section 24 is to:
clarify the grounds on which a Basel permit may be revoked, including adding a
number of new grounds. The grounds to revoke a Basel permit would be largely the
same as the grounds as for varying a Basel permit on the Minister's initiative (see
amendments made by item 29 of this Schedule). This would assist in streamlining the
requirements and processes of the Act; and
insert a statutory procedural fairness process for revocations of a Basel permit. This
process would be identical to the statutory procedural fairness process for varying a
Basel permit on the Minister's initiative (see amendments made by item 29 of this
Schedule) and would provide clarity and consistency regarding the extent of natural
justice that is required to be given for such decisions.
Section 24 - Revoking Basel permits - grounds
662. New section 24 would allow the Minister to revoke a Basel permit. This is an
important safeguard if, for example, a matter is brought to the attention of the Minister
that is relevant to the Basel permit. It is also intended to be available as a compliance tool.
663. Subsection 24(1) would have the effect that the Minister can only revoke a Basel
permit if the Minister is satisfied that any of the following grounds exist:
the permit holder gave the Minister false, misleading or incomplete information in, or
in relation to, an application or notice concerning the permit, and failed to either give
the Minister an explanation for doing so or give the Minister the correct or completed
information if the person were reasonably able to do so;
the permit holder is failing to comply, or has failed to comply, with a condition of the
permit or a provision of that Act that relates to the permit;
the permit holder is failing, or has failed after the granting of the permit, to provide or
arrange to provide an auditor with assistance that is reasonably necessary for the
conduct of an audit;
after considering information that was not considered when the permit was granted,
the revocation is necessary to prevent or lessen a threat of serious harm to human
health or the environment;
a ground prescribed by the regulations is satisfied for the holder and the permit.
116
664. The first note after subsection 24(1) would explain to readers that the requirement to
provide an auditor with assistance that is reasonably necessary for the conduct of an audit
is in new section 54 (see amendments made by item 18 of Schedule 2). The second note
would explain that the relevant audit may not be in relation to a permit, as the
requirement imposed by new section 54 would apply to an any audit of operations
covered by a permit, a ministerial order, a notification given under new section 33G that
no transit permit is required, or other prescribed operations.
665. The Minister would also be required to take into account any relevant comments
made by the permit holder in response to a notice provided under section 24A (see new
paragraph 24A(1)(b)) before deciding whether to revoke the Basel permit. This is an
essential aspect of the requirements of procedural fairness.
666. Subsection 24(2) would clarify that a revocation of a Basel permit can only apply to
an import, export or transit proposal of hazardous waste authorised by the permit if the
import, export or transit proposal has yet to begin. This would ensure that Basel permits
cannot be revoked after the waste is, for example, already on a ship that has left the
exporting country.
667. The first note following subsection 24(2) would clarify that where a Basel permit
authorises two or more import, export or transit proposals, revocation of that permit will
only apply to import, exports or transit proposals that are covered by the permit and have
not yet begun.
668. The second note following subsection 24(2) would clarify that a Basel permit cannot
be revoked if it only authorises one proposal and that proposal has already begun.
Section 24A - Revoking Basel permits - notice of proposed variation
669. New section 24A would prevent the Minister from revoking a Basel permit under
section 24 (on the Minister's own initiative) unless the Minister has:
given a notice of the proposed revocation to the holder of the permit in accordance
with this section; and
taken into account any information given to the Minister in response to the notice,
within 14 days of the notice being given to the permit holder.
670. The notice would be required to:
specify the proposed revocation and the grounds for the proposed variation; and
contain a request that the permit holder provide a written statement within 14 days
showing cause why their permit should not be revoked; and
117
include a statement setting out the person's review rights in respect of a decision to
revoke the permit.
671. This section would set out a natural justice requirement, which is consistent with both
administrative law principles and Commonwealth policy. Natural justice (also known as
procedural fairness) applies whenever an administrative decision might adversely affect
the rights, interests or legitimate expectations of a person. It requires the decision maker
to give persons whose interests may be adversely affected by the decision an opportunity
to see the evidence on which the decision-maker proposes to rely and have their views on
that evidence taken into account by the decision maker.
672. Subsection 24A(3) would have the effect that the notice described in this section is
not required if the Minister reasonably believes the proposed revocation is necessary to
prevent or lessen a serious and imminent threat to human health or the environment.
While this provision is intended to have the effect of excluding natural justice in such
circumstances, it is appropriate as it would only apply in exceptional circumstances where
there is credible and relevant evidence of a threat to human or environmental health that
is both serious and imminent.
Section 24B - Notice of revocation
673. New section 24B would require the Minister, after deciding to revoke a Basel permit,
to give the permit holder a written notice stating the following:
that the permit is to be revoked and the reasons for the revocation; and
the day the revocation takes effect (which must be on or after the day the notice is
given to the permit holder); and
information about the permit holder's review rights in respect of the decision.
674. Subsection 24B(2) would clarify that, where a show cause notice was given to the
permit holder under section 24A, the revocation cannot take effect before the end of 14
days after the day the show cause notice was given.
675. This is intended to ensure that the Minister is able to take account of any relevant
comments received from the permit holder in response to a notice given under section
24A, as required by paragraph 24A(1)(b). This is consistent with the requirements of
natural justice.
Section 24C - Exhaustive statement of natural justice hearing rule
676. New section 24C would have the effect that the statutory procedural fairness process
set out in Subdivision A is an exhaustive statement of the requirements of the natural
justice hearing rule in relation to decisions to revoke a Basel permit. This is appropriate to
provide clarity and certainty of the natural justice rules to both decision-makers and
permit holders. The process set out in new sections 24, 24A and 24B is appropriate for the
118
kind of decision involved as it only limits natural justice in the event of a serious and
imminent threat to human health or the environment.
Item 29
677. Item 29 would amend Division 4 of Part 2 of the Act to repeal existing sections 26 to
31 and substitute new Subdivisions C (new sections 26 to 26G) and D (new sections 26H
to 26L).
678. Existing sections 26 to 31 of the Act sets out the processes and requirements for
varying a Basel permit, including the timeframes applicable for a decision whether to
grant a variation of a Basel permit that had been requested by the holder of the permit.
However, the drafting of sections 26 to 31 is outdated and unnecessarily complicated,
resulting in the requirements and operation of the provisions being difficult to understand.
The purpose of item 29 is to update and simplify the drafting of these provisions, so as to
allow readers to more easily understand the kinds of variations, the processes and
requirements of these variations, and applicable timeframes for variations to be decided
(including when the decision period may be paused or extended).
679. Item 29 would separate the kinds of variations of a Basel permit into variations
requested by the holder of the permit (new Subdivision C), and variations that are made
on the Minister's initiative (new Subdivision D). This will assist in clarifying for readers
the different requirements and process for the two kinds of variations.
680. The only changes that item 29 would make to the substantive operation of existing
sections 26 to 31 is to:
allow the Minister to extend the decision period for variations to Basel export permits
requested by the permit holder for an additional 60 days if they think it will take
more than 60 days to decide whether to grant the permit. This power already existed
for variations of Basel import permits and Basel transit permits and the absence of
such a power for Basel export permits appears to have been an oversight in the
existing section 29. This change would ensure that the decision period for all kinds of
Basel permit variation applications may be extended for 60 days where necessary,
which streamlines the process and reduces complexity;
require the Minister to consider any relevant comments received in response to an
invitation seeking public comment on the application to vary the permit. This is
consistent with the amendments made by Part 2 of this Schedule to insert a formal
public comment process for permit and variation applications (and notices to vary
such applications);
clarify the grounds on which a Basel permit may be varied on the Minister's
initiative, including adding a number of new grounds. The grounds to vary a Basel
permit on the Minister's initiative would be largely the same grounds as for revoking
a Basel permit (see amendments made by item 28 of this Schedule). This would assist
in streamlining the requirements and processes of the Act; and
119
insert a statutory procedural fairness process for variations of a Basel permit on the
Minister's initiative. This process would be identical to the statutory procedural
fairness process for revoking a Basel permit (see amendments made by item 28 of
this Schedule) and would provide clarity and consistency regarding the extent of
natural justice that is required to be given for such decisions.
Subdivision C - Varying Basel permits: on application
Section 26 - Varying Basel permits on application
681. New subsection 26(1) would allow the Minister, on application by the holder of the
permit, to vary a Basel permit if the Minister:
is satisfied that, if the Minister had been asked to grant the Basel permit as it was
proposed to be varied, the Minister would have decided to grant the permit; and
has taken into account any relevant public comments received in response to an
invitation under paragraph 33(1)(aa) about the application.
682. The note following subsection 26(1) provides examples of variations to a Basel permit
that may be requested by the permit holder.
683. New subsection 26(2) would require an application to vary a Basel permit to be made
in the approved form and to include the information or documents required by the
approved form.
684. New subsection 26(3) would require the Minister to notify the applicant of receipt of
the application within 7 days after receiving it.
Section 26A - Minister may request further information about an application
685. New section 26A would be the equivalent of new section 15 (see item 24 of this
Schedule) in respect of applications to vary a Basel permit.
686. New section 26A would allow the Minister to request the applicant provide further
information in relation to an application. The request must be made within 60 days of the
Minister receiving the application.
687. If the Minister requests additional information of an applicant under this section, the
decision period for the application would be paused until the request is complied with. If
the request is not complied with in 60 days, the application would be taken to be
withdrawn.
Section 26B - Period for making a decision on an application - default period
688. New section 26B would be the equivalent to new section 16 (see item 26 of this
Schedule) in respect of applications to vary a Basel permit.
120
689. New subsection 26B(1) would provide that the Minister must decide whether to make
the variation within 60 days from the day the Minister receives the application. This is the
default decision period, that can be paused or extended under any of new sections 26A,
26C, 26D, 26E, or 26F.
690. New subsection 26B(2) would have the effect if the Minister has not decided whether
to make the variation before the end of the decision period (including as paused or
extended under new sections 26A, 26C, 26D, 26E or 26F), the Minister is taken to have
decided not to make the variation. The deemed refusal provided by this subsection is
consistent with the operation of existing section 29 of the Act.
Section 26C - Period for making a decision on an application - extensions for Basel export
permits
691. New section 26C would be the equivalent to new section 16A (see item 26 of this
Schedule) in respect of applications to vary a Basel permit.
692. New section 26C would provide for the decision period to be extended for variations
of Basel export permits in the situation where the competent authority of the receiving
country, or of a transit country, has not yet given or refused consent to the proposal. This
extension of the decision period recognises that:
Australia's obligations under the Basel Convention prevent the Minister from varying
an export permit unless both the receiving country and any transit countries have
consented to the export as varied; and
the timing of a competent authority's consent or refusal of consent is not within the
control of the Minister or the applicant.
693. Subsection 26C(1) would require the Minister, within 21 days after receiving an
application to vary a Basel export permit, to notify the competent authority of the
receiving country and of any transit countries of such information as is prescribed in the
regulations made for the purposes of that subsection.
694. Subsection 26C(2) would have the effect that if the competent authority of either the
receiving country or of any transit country has neither given nor refused consent by the
end of the 46th day of the decision period, the decision period is paused until the earlier
of:
the day the relevant competent authority provides consent or refuses consent, and
12 months from the day the Minister received the application.
695. Subsection 26C(3) would clarify that, for foreign countries that are parties to the
Basel Convention, a reference to a consent is a reference to a consent given in
accordance with the Basel Convention.
121
Section 26D - Period for making a decision on an application - extensions for Basel permits
696. New section 26D would be the equivalent of new section 16B (see item 26 of this
Schedule) in respect of applications to vary a Basel permit.
697. New section 26D would provide for the decision period to be extended for variations
to Basel permits where the Minister thinks that it will take more than 60 days to decide
whether to make the variation. Where this is the case, the Minister may extend the
decision period for a further 60 days.
698. As set out above, this section would apply to variations of Basel export permits, Basel
import permits and Basel transit permits.
699. If the Minister decides, under this section, to extend the decision period for a variation
to a Basel permit for an additional 60 days, they must notify the following entities of the
extension as soon as practicable:
the applicant;
for applications to vary a Basel import permit - the competent authority of the country
from which the waste is proposed to be exported;
for applications to vary a Basel export permit - the competent authority of the
receiving country and the competent authority of any transit countries.
Section 26E - Period for making a decision on an application - referrals under the
Environment Protection and Biodiversity Conservation Act 1999
700. New section 26E would be the equivalent to new section 16C (see item 26 of this
Schedule) in respect of applications to vary a Basel permit.
701. New section 26E would provide for the decision period to be paused for variations to
Basel permits where the proposal that is the subject of the application has been referred
for assessment under Part 11 of the EPBC Act. This extension recognises that assessment
under the EPBC Act will address matters that are relevant to the decision whether to
make the variation, including whether the proposal, as varied, is likely to significantly
impact the environment. Advice provided under Part 11 of the EPBC Act may also
contain recommended conditions that the Minister may decide to impose on the Basel
permit, if the variation is granted.
702. Accordingly, the purpose of new section 26E is to ensure that the decision period is
paused until the corresponding EPBC Act process is completed (whether by way of
advice being provided under section 163 of that Act, or a decision that advice is not
required being made under section 161A of that Act), so that the Minister will have all
relevant information before them when deciding whether to make the variation.
703. The note following new section 26E would explain the purpose of the process in Part
11 of the EPBC Act.
122
Section 26F - Period for making decision on application for Basel permit - extension agreed
with applicant
704. New section 26F would be the equivalent of new section 16D (see item 26 of this
Schedule) in respect of applications to vary a Basel permit.
705. New section 26F would allow the Minister and the applicant to agree in writing to
extend the decision period for the variation of a Basel permit. There would be no time
limit on the extension that may be agreed.
Section 26G - Notice of variation
706. New section 26G would set out the notice requirements for a decision by the Minister
whether to make a requested variation to a Basel permit.
707. The Minister must give the permit holder a notice stating:
whether the permit is to be varied;
where the decision is to make the variation - the date the variation takes effect;
where the decision is not to make the variation - the reasons for the decision and
information about the permit holder's review rights in respect of the decision.
Subdivision D - Varying Basel permit: on Minister's initiative
Section 26H - Varying Basel permits on the Minister's initiative - grounds
708. New section 26H would allow the Minister to vary a Basel permit on the Minister's
own initiative (without having received an application from the holder of the licence).
This is an important safeguard if, for example, a matter is brought to the attention of the
Minister that is relevant to the Basel permit. It is also intended to be available as a
compliance tool.
709. Section 26H would have the effect that the Minister can only vary a Basel permit on
the Minister's own initiative if the Minister is satisfied that any of the following grounds
exist:
the permit holder gave the Minister false, misleading or incomplete information in, or
in relation to, an application or notice concerning the permit, and failed to either give
the Minister an explanation for doing so or give the Minister the correct or completed
information if the person were reasonably able to do so;
the permit holder is failing to comply, or has failed to comply, with a condition of the
permit or a provision of that Act that relates to the permit;
the permit holder is failing, or has failed after the granting of the permit, to provide or
arrange to provide an auditor with assistance that is reasonably necessary for the
conduct of an audit;
123
after considering information that was not considered when the permit was granted,
the variation is necessary to prevent or lessen a threat of serious harm to human health
or the environment;
a ground prescribed by the regulations is satisfied for the holder and the permit.
710. The Minister would also be required to take into account any relevant comments
made by the permit holder in response to a notice provided under section 26J (see new
paragraph 24J(1)(b)) before deciding whether to vary the Basel permit on the Minister's
initiative. This is an essential aspect of the requirements of procedural fairness.
711. The first note following section 26H would provide some examples of variations of
Basel permits that may be made under this provision.
712. The third note would refer the reader to section 54 for the requirement to provide an
auditor with assistance that is reasonably necessary for the conduct of an audit.
713. The third note would explain that the relevant audit may not be in relation to a permit,
as the requirement imposed by new section 54 would apply to an any audit of operations
covered by a permit, a ministerial order, a notification given under new section 33G that
no transit permit is required, or other prescribed operations.
Section 26J - Varying Basel permits - notice of proposed variation
714. New section 26J would prevent the Minister from varying a Basel permit on the
Minister's own initiative unless the Minister has:
given a notice of the proposed variation to the holder of the permit in accordance with
this section; and
taken into account any information given to the Minister in response to the notice,
within 14 days of the notice being given to the permit holder.
715. The notice would be required to:
specify the proposed variation and the grounds for the proposed variation; and
contain a request that the permit holder provide a written statement within 14 days
showing cause why their permit should not be varied; and
include a statement setting out the person's review rights in respect of a decision to
vary the permit.
716. This section would set out a natural justice requirement, which is consistent with both
administrative law principles and Commonwealth policy. Natural justice (also known as
procedural fairness) applies whenever an administrative decision might adversely affect
124
the rights, interests or legitimate expectations of a person. It requires the decision maker
to give persons whose interests may be adversely affected by the decision an opportunity
to see the evidence on which the decision-maker proposes to rely and have their views on
that evidence taken into account by the decision maker.
717. Subsection 26J(3) would have the effect that the notice described in this section is not
required if the Minister reasonably believes the proposed variation is necessary to prevent
or lessen a serious and imminent threat to human health or the environment. While this
provision is intended to have the effect of excluding natural justice in such circumstances,
it is appropriate as it would only apply in exceptional circumstances where there is
credible and relevant evidence of a threat to human or environmental health that is both
serious and imminent.
Section 26K - Notice of variation
718. New section 26K would require the Minister, after deciding to vary a Basel permit on
the Minister's own initiative, to give the permit holder a written notice stating the
following:
that the permit is to be varied and the reasons for the variation; and
the day the variation takes effect (which must be on or after the day the notice is given
to the permit holder); and
information about the permit holder's review rights in respect of the decision.
719. The example after subsection 26K(1) would clarify that the variation could be to
impose a condition that relates to an import that has already happened, but the condition
would need to be able to be complied with on or after the day the variation takes effect.
720. Subsection 26K(2) would clarify that, where a show cause notice was given to the
permit holder under section 26J, the variation cannot take effect before the end of 14 days
after the day the show cause notice was given.
721. This is intended to ensure that the Minister is able to take into account any relevant
comments received from the permit holder in response to a notice given under section
26J, as required by section 26H. This is consistent with the requirements of natural
justice.
Section 26L - Exhaustive statement of natural justice hearing rule
722. New subsection 26L would have the effect that the statutory procedural fairness
process set out in Subdivision D is an exhaustive statement of the requirements of the
natural justice hearing rule in relation to decisions to vary a Basel permit on the
Minister's initiative. This is appropriate to provide clarity and certainty of the natural
justice rules to both decision-makers and permit holders. The process set out in new
sections 26H, 26J and 26K is appropriate for the kind of decision involved as it only
125
limits natural justice in the event of a serious and imminent threat to human health or the
environment.
Division 2 - Consequential amendments
Item 30
723. Item 30 would amend the note following section 161B of the EPBC Act to remove the
reference to subsections 16(5) and 29(5) of the Act. This amendment is consequential to
items 26 and 29 of this Schedule, which repealed these subsections.
Division 3 - Application and transitional provisions
Item 31
724. Item 31 is an application and transitional provision that applies to the amendments
made by items 22 to 29 of this Schedule.
725. Sub-item 31(1) would have the effect that the amendments made by items 22 to 27 of
this Schedule (concerning the granting of Basel permits) apply in relation to an
application for a Basel permit where the application is made, or varied, on or after the
commencement of the Bill.
726. Sub-item 31(2) would have the effect that any regulations made for the purposes of
existing subsection 15A(3) (concerning the information that must be provided to the
competent authority of the receiving country in the case of an application for a Basel
export permit) are taken, after the commencement of the Bill, to have been made for the
purposes of new subsection 16A(1). This would remove the need to remake such
regulations just because the source of power for those regulations had changed.
727. Sub-item 31(3) would have the effect that the amendments made by items 28 and 29
of this Schedule (concerning the revocation or variation of Basel permits) apply in
relation to:
a decision whether to revoke a Basel permit, where the decision was made on or after
the commencement of the Bill;
a decision whether vary a Basel permit on the Minister's initiative, where the decision
was made on or after the Bill;
an application by the holder of a Basel permit to vary that permit, where the
application was made on or after the commencement of the Bill.
728. This means that an application to vary a Basel permit that was made prior to the
commencement of the Bill would be assessed and determined in accordance with the Act
as in force immediately prior to that date.
729. Sub-item 31(4) would have the effect that any regulations made for the purposes of
existing subsection 28A(2) (concerning the information that must be provided to the
126
competent authority of the receiving country in the case of an application to vary a Basel
export permit) are taken, after the commencement of the Bill, to have been made for the
purposes of new subsection 26C(1). This would remove the need to remake such
regulations just because the source of power for those regulations had changed.
Part 4 - Publication of certain particulars
730. Part 4 (items 32 to 35) would make minor amendments to section 33 of the Act to
clarify that the publication of particular under that section may include the name of the
person concerned, and that minor variations are not required to be published. Part 4 would
also insert a new power for the Minister to publish details of certain contraventions of the
Act, and the name of the person concerned.
Division 1 - Amendments
Item 32
731. Subsection 33(1) of the Act requires the Minister to cause to be published certain
information on the Department's website as soon practicable after the relevant
circumstances arise. This includes particulars of:
each permit application or notice to vary a permit application that the Minister
receives under the Act or under a set of Article 11 regulations;
each Basel permit or special permit that is granted, revoked, surrendered or varied;
each decision not to grant a Basel or special permit;
each determination under section 13B (converting an application for a Basel
permit to an application for a special permit or vice versa).
732. Item 32 would amend subsection 33(1) to clarify that the particulars published under
that section may include the name of the person concerned.
733. The publishing of the names of the persons concerned is intended to provide
transparency and assist industry in understanding who has applied for, or holds, a Basel
permit or special permit, and the export, import or transit proposals covered by the
permit.
734. Publishing the name of permit applicants is also likely to assist interested persons to
provide relevant comments on such applications in response to an invitation, as provided
for by the amendments in Part 2 of this Schedule.
735. It is acknowledged that, to the extent that any permit holders are individuals rather
than body corporates, this amendment would allow the Minister to publish personal
information within the meaning of the Privacy Act. However, it is anticipated that most
holders of Basel permits and special permits will be body corporates, for which the
protections in the Privacy Act do not apply.
127
736. In addition, the fact that publishing the names of permit applicants and holders can
assist entities to confirm that the person they are dealing with is complying with the
requirements of the Act, and is likely to provide relevant context for a permit application
for which there is an invitation for public comments, outweighs the potential adverse
consequences to the individuals concerned.
Item 33
737. As set out above, subsection 33(1) of the Act requires the Minister to cause certain
particulars of applications and decisions to be published on the Department's website.
Subsection 33(2) set out a number of circumstances in which publication of the
particulars listed in subsection 33(1) is not required. The circumstances in subsection
33(2) require the Minister to determine in writing that publishing the information would
be contrary to the public interest.
738. Item 33 would amend section 33 of the Act to add a new subsection 33(2B). New
subsection 33(2B) would provide an additional circumstance in which publication of the
particulars listed in subsection 33(1) is not required. Under new subsection 33(2B) the
Minister would not be required to publish the particulars of a variation for a Basel or
special permit, or an application for such a variation, if the variation is of a minor or
technical nature. An example of a variation of a minor nature may be a variation to
correct a typographical error in the permit.
739. The purpose of this amendment is to streamline the publishing requirements in the
Act to ensure that only substantive variations are required to be published. This removes
unnecessary administrative burden.
Item 34
740. Item 34 would amend section 33 of the Act to insert a new subsection 33(4).
741. New subsection 33(4) would allow the Minister to publish a list of certain
compliance-related matters, and the name of the affected persons. Specifically, the
Minister would be able to publish:
an offence against the Act of which a person has been convicted, and the person's
name;
a civil penalty order that has been made against a person under section 82 of the
Regulatory Powers Act for contravention of a civil penalty provision in the Act,
and the person's name;
any undertaking given by a person under section 114 of the Regulatory Powers
Act in relation to a provision of the Act, the terms of the undertaking, and the
person's name;
128
any order made under against a person under section 115 of the Regulatory
Powers Act for a breach of an undertaking given in relation to a provision of the
Act, and the person's name;
any injunction granted against a person under section 121 or 122 of the
Regulatory Powers Act in relation to a provision of the Act, and the person's
name;
any order under Part 3 of the Act given by the Minister to a person, and the
person's name.
742. It is intended that publishing these matters, particularly the relevant person's name,
would act as a deterrent to contravention and therefore assist with ensuring the integrity
of the regulatory regime. While it is acknowledged that the amendment made by this item
would authorise the Minister to publish personal information and also sensitive
information within the meaning of the Privacy Act (namely, part of a person's criminal
record):
it is expected that most persons who name would be published will be body
corporates, for which the Privacy Act do not apply;
to the extent that any information published under new subsection 33(4)
constitutes personal or sensitive information under the Privacy Act, the deterrent
effect of publishing the information, and the need to ensure the integrity of the
regulatory regime, outweighs the potential adverse consequences to the
individuals concerned; and
the power in new subsection 33(4) would be discretionary, and as such the
Minister would retain the ability to decide not to publish any of the information
set out above if they consider that, in the particular circumstances, the potential
adverse consequences of publishing the information outweigh the intended
deterrence effect.
Division 2 - Application provisions
Item 35
743. Item 35 is an application provision that explains how the amendments made by items
31 to 33 would apply.
744. Sub-item 35(1) would have the effect that the amendments made by item 32 of this
Schedule would apply in relation to particulars published on or after the commencement
of the Bill.
745. Sub-item 35(2) would have the effect that the amendments made by item 33 of this
Schedule would apply in relation to a variation of a Basel or special permit, or an
application for such a variation, that is made on or after the commencement of the Bill.
129
746. Sub-item 35(3) would have the effect that the amendments made by item 34 would
allow the publishing of:
an offence against the Act for which a person is convicted, whether or not the
conviction occurred before, on or after the commencement of the Bill;
an order made under section 82 or section 115 of the Regulatory Powers Act that was
made on or after the commencement of the Bill;
an undertaking given under the Regulatory Powers Act on or after the commencement
of the Bill;
an injunction granted on or after the commencement of the Bill;
an order under Part 3 of the Act that was given to a person by the Minister either
before, on or after the commencement of the Bill.
Part 5 - Fees
747. Part 5 (item 36) amends the Act to allow for the waiver or refund of fees.
Item 36
748. Item 36 would repeal subsections 32(5) and 32(6) of the Act and substitute a new
regulation-making power at subsection 32(5). New subsection 32(5) would allow the
Minister to wholly or partly waive, or wholly or partly refund, a prescribed fee in the
circumstances prescribed by the regulations.
749. Allowing the circumstances for refunds and waivers to be prescribed in the
regulations would allow the Governor-General flexibility to set different circumstances
for different fees or for different classes of person as appropriate depending on changing
circumstances. It would also constrain the Minister's power to waive or refund fees, as
the Minister would only be able to do so if regulations are made prescribed
circumstances, and those circumstances are met.
750. The purpose of the amendment made by item 36 is to ensure that there is sufficient
flexibility in the Act to allow refunds or waivers of fees when it is appropriate, in order to
provide equity and justness to applicants. It is intended that the circumstances prescribed
in the regulations would only reflect exceptional circumstances. It is not intended that
regulations would allow for refunds of an application fee in the event that the permit
application is refused.
Part 6 - Hazardous Waste Technical Group
751. Part 6 (items 37 to 40) would make amendments to the Act to remove references to
the Hazardous Waste Technical Group and replace it with a new mandatory consultation
mechanism that is more appropriate to the relevant decisions.
130
Item 37
752. Item 37 would amend section 4 of the Act (concerning definitions) to repeal the fourth
note following the definition of hazardous waste. This item is consequential to the
amendments made by item 40 of this Schedule, as the note refers to the Hazardous Waste
Technical Group.
Item 38
753. Item 38 would amend section 4 of the Act to repeal the definition of Hazardous Waste
Technical Group. This item is consequential to the amendments made by item 40 of this
Schedule.
Item 39
754. Item 39 would amend the Act to repeal existing subsections 58B(2) and 58C(2) and
substitute new subsections 58B(2) and 58C(2).
755. These amendments are consequential to the amendments made by item 40 (see below)
to remove the concept of the Hazardous Waste Technical Group from the Act and to
replace it with a new mandatory consultation mechanism that is more appropriate for the
decisions involved.
756. New subsections 58B(2) and 58C(2) would require the Minister, when deciding
whether to issue an evidentiary certificate under section 58B (concerning whether a
specified substance or object is, or is not, hazardous waste for the purposes of the Act) or
58C (concerning whether specified conduct is, or is not, environmentally sound
management of hazardous waste for the purposes of the Act), to consult with one or more
of:
a person who the Minister considers has appropriate expertise or qualifications
relevant to the decision; or
an industry group; or
an environmental group; or
a State or Territory government body.
Item 40
757. Item 40 would amend the Act to repeal sections 58D and 58E and substitute a new
section 58D.
758. Existing section 58E requires the Minister to establish the Hazardous Waste Technical
Group and sets out related matters such as the qualifications of members, procedures to
be followed and remuneration. Under sections 58B, 58C and 58D of the current Act, the
Minister is required to consult with the Hazardous Waste Technical Group before
131
exercising certain powers relating to issuing evidentiary certificates and regulations
defining hazardous waste.
759. However, it has become apparent that the concept of the Hazardous Waste Technical
Group is now out of date, and there are often instances where advice is required on a
particular subject matter, but no member of the Hazardous Waste Technical Group has
expertise in that particular subject matter. The requirements for formal procedures and
quorums also limit the Minister's ability to consult with the Group quickly where
necessary and appropriate, to limit harm to human health and the environment.
760. The intention is to remove the concept of the Hazardous Waste Technical Group from
the Act, and to replace it with a mandatory consultation mechanism that is more flexible
and covers a wider, and more relevant, range of expertise. The new consultation
mechanism would apply for the same decisions that the Minister is, under the current Act,
required to consult with the Hazardous Waste Technical Group. Accordingly, there would
be no lessening of consultation requirements; rather, the new mechanism would ensure
that the Minister can tailor the mandatory consultation to persons who have the
appropriate expertise for the particular decision at hand, and can also seek a wider range
of views on the potential implications of the decision from persons who may be, or
represent those who may be, affected by that decision. This would ensure the Minister has
all relevant information before them when making the relevant decision.
761. New section 58D would require the Minister, before regulations are made for the
purposes of paragraph (a) of the definition of hazardous waste (prescribing additional
wastes as hazardous waste), to consult with one or more of:
a person who the Minister considers has appropriate expertise or qualifications
relevant to the regulations; or
an industry group; or
an environmental group or
a State or Territory government body.
762. It is intended that the results of this consultation would form part of the Minister's
recommendation to the Governor-General to make the proposed regulations.
132
ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Hazardous Waste (Regulation of Exports and Imports) Amendment Bill 2021
This Bill is compatible with human rights and freedom recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Hazardous Waste (Regulation of Exports and Imports) Amendment Bill 2021 (the Bill)
would amend the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (the Act).
The Act implements Australia's obligations under the Basel Convention on the Control of
Transboundary Movements of Hazardous Waste and their Disposal (the Basel Convention),
an international treaty for the control of the transboundary movement of hazardous waste and
its disposal. The Act regulates the export, import and transit of hazardous waste to ensure it is
managed in an environmentally sound manner to minimise harmful effects of hazardous
waste on humans and the environment.
The Bill would make amendments to the Act to:
a. Implement amendments to the Basel Convention to strengthen transboundary controls on
unsorted plastic wastes and plastic wastes containing hazardous substances and ensure
Australia's compliance with international obligations;
b. Trigger the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers
Act) to adopt standardised Commonwealth regulatory powers and best practice regulation
with minor modifications;
c. Improve the compliance and enforcement framework under the Act by:
i. Refining existing criminal offences and introducing new strict liability
offences and civil penalty provisions to cover conduct relating to export,
import and transit of hazardous waste;
ii. increasing the penalties for offences relating to the export, import and transit
of hazardous waste and introducing new aggravated offences where the non-
compliance results, or is likely to result, in injury or damage to human beings
or the environment;
iii. Introducing new information sharing provisions to authorise sharing of
information across the Commonwealth and state and territory governments
where appropriate; and
133
iv. Introducing recordkeeping requirements, information gathering powers,
mechanisms to protect, use and disclose information, and audit powers to
ensure compliance with the Act;
d. Replace the Hazardous Waste Technical Group with a requirement to consult with
persons with appropriate expertise;
e. Streamline and reduce the complexity of the Act while ensuring the standard of
environmental protection remains high.
Human Rights implications
This Bill engages the following human rights:
the right to health in Article 12(1) of the International Covenant on Economic, Social
and Cultural Rights (the ICESCR);
the right to a fair trial and fair hearing in Article 14(1) of the International Covenant
on Civil and Political Rights (the ICCPR);
the right to the presumption of innocence in Article 14(2) of the ICCPR;
the right to privacy in Article 17 of the ICCPR;
the right to freedom of expression in Article 19(2) of the ICCPR.
Right to health
Article 12(1) of the ICESCR makes provision in relation to the right to health, specifically the
right to the enjoyment of the highest attainable standard of physical and mental health.
Article 12(2)(b) includes the improvement of all aspects of environmental hygiene as a step
to be taken to achieve the full realisation of the right to health. In its General Comment No 14
(August 2000), the United Nations Committee on Economic, Social and Cultural Rights
stated that this encompasses the prevention and reduction of human exposure to harmful
substances (at [15]).
Item 1 of Schedule 1 would amend the definition of hazardous waste in section 4 of the Act
to add plastic waste, including mixtures of such waste, covered by Annex II to the Basel
Convention. The effect of this item means that these types of plastic waste would be subject
to the transboundary movement controls under the Act, including the requirement to obtain a
permit. Each permit application is assessed, and conditions may be imposed on permits grants
under the Act to ensure that the import, export and transit of hazardous waste is done in an
environmentally sound way.
134
Therefore, the Bill promotes the right to health under Article 12 of the ICESCR. It positively
engages this right by ensuring that, where relevant, environmental risks are considered in
decision-making. This would ensure that harmful human exposure to plastics are minimised.
Right to a fair trial and fair hearing
Article 14(1) of the ICCPR guarantees the right to a fair trial and fair hearing in relation to
both criminal and civil proceedings.
Civil penalty provisions
The Bill would insert new civil penalty provisions relating to, for example:
non-compliance with recordkeeping requirements or notice to produce documents or
give information (item 2 of Schedule 3);
unauthorised use or disclosure of information (item 2 of Schedule 3);
the import, export or transit of hazardous waste without a permit (item 4 of Schedule
4); and
non-compliance with Ministerial orders issued under Part 3 of the Act (item 17 of
Schedule 4).
Civil penalty provisions may engage criminal process rights under Articles 14 and 15 of the
ICCPR, regardless of the distinction between criminal and civil penalties in domestic law.
When a provision imposes a civil penalty, an assessment is required as to whether it amounts
to a criminal penalty for the purposes of the ICCPR, so that an assessment can be made as to
whether the provision is consistent with the requirements of the ICCPR.
Determining whether penalties could be considered criminal under international human rights
law requires consideration of the classification of the penalty provisions under Australian
domestic law, the nature and purpose of the penalties, and the severity of the penalties.
The civil penalty provisions of the Bill would expressly classify the penalties as civil
penalties. Those provisions create solely pecuniary penalties in the form of a debt payable to
the Commonwealth. The purpose of these penalties would be to encourage compliance with
the requirements for the transboundary movement of hazardous waste and effective
administration of the Act. The civil penalty provisions would not impose criminal liability
and a finding by a court that they have been contravened would not lead to the creation of a
criminal record. The civil penalties would only apply to the participants of the hazardous
waste regulatory regime, rather than the public in general. These factors all suggest that the
civil penalties imposed by the Bill are civil rather than criminal in nature.
The maximum penalties that may be imposed by civil penalty orders are between 240 and
1000 penalty units. Where the penalties are higher, this reflects the more serious implications
or results of the contravention. Under subsection 82(5) of the Regulatory Powers Act, as
applied to the Act by item 20 of Schedule 2 to the Bill, the maximum penalties that apply to
individuals would be those specified in the civil penalty provisions of the Bill. Due to the
135
proposed application of the standard provisions in Part 4 of the Regulatory Powers Act, the
corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act would apply
to the proposed civil penalty provisions in the Bill. Consequently, for bodies corporate, the
penalties will be no more than five times the penalty specified in the civil penalty provision,
i.e., the maximum penalties will be between 1200 and 5000 penalty units.
These civil pecuniary penalties for the proposed civil penalty provisions in the Bill have been
set by reference to A Guide to Framing Commonwealth Offences, Infringement Notices and
Enforcement Powers (the Guide). They seek to reflect the seriousness of the contravening
conduct and the threat that the conduct may pose to human and environmental health.
In light of the matters discussed above, the civil penalties provided for by the Bill would not
amount to a criminal penalty for the purposes of the ICCPR, so criminal process rights
provided for by Articles 14 and 15 of the ICCPR are not engaged by the provisions of the Bill
(and the Regulatory Powers Act) relating to civil penalties.
Overlap of criminal and civil penalties
Sections 90 and 91 of the Regulatory Powers Act would apply in relation to civil penalty
proceedings brought under the Act as a result of item 20 of Schedule 2 of the Bill. These
provisions concern the relationship between criminal and civil penalty proceedings.
Section 90 of the Regulatory Powers Act clarifies that criminal proceedings may be
commenced against a person for conduct that is the same, or substantially the same, as
conduct that would constitute a contravention of a civil penalty provision, regardless of
whether a civil penalty order has been made against the person in relation to the
contravention. This section recognises the importance of criminal proceedings and criminal
penalties in sanctioning contraventions of a triggering Act (i.e. an Act that seeks to apply the
standard provisions of the Regulatory Powers Act) and ensures that criminal remedies are not
precluded by earlier civil action.
Section 90 of the Regulatory Powers Act engages the criminal process rights in Article 14 of
the ICCPR, but does not limit those rights. Article 14(7) of the ICCPR provides that "no one
shall be liable to be tried or punished again for an offence for which he has already been
finally convicted or acquitted in accordance with the law and penal procedure of each
country". This prohibition on double jeopardy is a fundamental safeguard in the common law
of Australia. It means that a person who has been convicted or acquitted of a criminal charge
is not to be re-tried for the same or substantially the same offence.
As section 90 of the Regulatory Powers Act permits both civil and criminal proceedings, but
not multiple criminal proceedings for the same conduct, Article 14(7) of the ICCPR is not
infringed. Further, section 88 of the Regulatory Powers Act provides a safeguard against
potential double jeopardy by stating that a court cannot make a civil penalty order against a
person for a contravention of a civil penalty provision if the person has been convicted of an
offence constituted by conduct that is the same, or substantially the same, as the conduct
constituting the contravention.
Section 91 of the Regulatory Powers Act provides that evidence of information given, or
evidence of production of documents, by an individual is not admissible in criminal
proceedings against the individual if:
136
the individual previously gave the information or produced the documents in
proceedings for a civil penalty order against the individual for an alleged
contravention of a civil penalty provision (whether or not the order was made); and
the conduct alleged to constitute the offence is the same, or substantially the same, as
the conduct alleged to constitute the contravention.
Section 91 of the Regulatory Powers Act ensures that information or documents produced
during civil proceedings are not relied upon to support subsequent criminal proceedings,
unless those proceedings are criminal proceedings relating to falsifying evidence in civil
proceedings. Accordingly, that section engages, but does not limit, the criminal process rights
in Article 14 of the ICCPR.
In summary, item 20 of Schedule 2, which triggers Part 4 of the Regulatory Powers Act,
engages, but does not limit, the right to a fair and public hearing and the other criminal
process rights and minimum guarantees in Article 14 of the ICCPR.
Serious and imminent threat to human or environmental health
Part 4 of Schedule 5 to the Bill would allow the Minister to vary or revoke a Basel permit on
the Minister's own initiative. In these circumstances, the Minister must give the permit holder
notice specifying particular matters, including a request to give the Minister, within 14 days
after the day the notice is given, a written statement showing cause why the proposed
decision should not be made.
However, the notice will not be required if the Minister is satisfied that the proposed decision
is necessary to prevent or lessen a serious and imminent threat to human health or the
environment. This engages with the fair hearing right under Article 14 of the ICCPR because
an affected person would not have the opportunity to be heard prior the Minister's decision to
vary or revoke the Basel permit. This will be necessary where there is evidence of a serious
and imminent threat to human or environmental health, as the threat may have materialised
within 14 days and caused serious harm to human or environmental health. However, the
requirement that the threat be both serious and imminent, and the Minister having to be
satisfied that varying or revoking the Basel permit is necessary to prevent or lessen the threat,
mean this would be a high bar that will likely only be able to be satisfied in rare
circumstances. In addition, in these circumstances, the Minister's decision would still be a
reviewable decision as provided for by section 57 of the Act. The person would still be
entitled to a fair and public hearing by a competent, independent and impartial tribunal
established by law. Therefore, the right to a fair hearing outlined by Article 14 of the ICCPR
is not unduly limited.
Notice to produce
Item 2 of Schedule 3 would insert new section 41E, which would allow the Secretary, by
written notice, to require a person to give an inspector or an entrusted person specified
documents or information, if the Secretary reasonably believes that the person is capable of
giving the specified information or documents for the purpose of investigating or preventing
a contravention of the Act. Item 2 of Schedule 3 would also insert section 41F, which would
provide that an individual is not excused from giving information, or producing a document,
under section 41E on the basis that giving that information might tend to incriminate the
137
individual in relation to an offence, or on the basis that at general law, the person would
otherwise be able to claim the privilege against self-exposure to a penalty (other than a
penalty for an offence).
New section 41F therefore has the effect of overriding the common law privilege against self-
incrimination and the penalty privilege. This engages with the fair hearing right under Article
14 as an affected person will not have the opportunity to refuse to provide information or
documents on the basis that the information or documents would tend to incriminate the
individual in relation to an offence or civil penalty.
The intention of overriding the privilege against self-incrimination is to support the
compliance and enforcement functions in the Act and better equip the Commonwealth with
powers to ensure that Australia is able to properly comply with its international obligations
under the Basel Convention. It also gives weight to the public and environmental benefit in
limiting potential non-compliance with the Act, given the significant harm to the environment
that may result from the transboundary movement of hazardous waste not being properly
regulated.
The abrogation of the privilege against self-incrimination would operate alongside subsection
41F(2), which would prevent the use of potentially self-incriminating information, or any
other information, document or thing obtained as a direct or indirect consequence of giving
the potentially self-incriminating information in all criminal proceedings except for those in
relating to giving false information in the notice under section 41E.
This means that while a person will be required to provide any incriminating information or
documents specified in a notice under section 41E, such information or documents, or other
evidence directly or indirectly derived from that information or documents, cannot then be
used against that person in any criminal proceedings, other than proceedings arising out of
the notice itself. The inclusion of this immunity provision is consistent with the Guide, which
provides that 'if the privilege against self-incrimination is overridden; the use of
incriminating evidence should be constrained'.
Consequently, to the extent that the abrogating of the privilege against self-incrimination
limits the right to a fair hearing, it is reasonable, necessary and proportionate.
Right to the presumption of innocence
Strict liability offences
Strict liability offences engage and limit the presumption of innocence as they allow for the
imposition of criminal liability without the need to prove fault. However, strict liability
offences will not necessarily be inconsistent with the presumption of innocence, provided that
the removal of the presumption of innocence pursues a legitimate objective and is reasonable,
necessary and proportionate to achieving that objective. It is also important to note that the
defence of honest and reasonable mistake of fact is still available and the existence of strict
liability does not make any other defence unavailable.
Application of strict liability to offences in the Bill has been set out having regard to the
Guide and the Senate Scrutiny of Bills Committee Sixth Report of 2002: Application of
Absolute and Strict Liability Offences in Commonwealth Legislation. Consistent with these
138
documents, strict liability is considered appropriate as the penalties for the offences do not
include imprisonment and do not exceed 60 penalty units for an individual.
Item 2 of the Schedule 3 of the Bill would insert strict liability offences into the Act relating
to recordkeeping, confidentiality and information disclosure, specifically:
Failure to make or retain records by a permit holder where they are required to (new
subsection 41D(4));
Failure to give information or produce documents when the Minister has issued a
notice to produce (new subsection 41E(5));
the unauthorised use or disclosure of protected information by an entrusted person or
an official of a Commonwealth entity who obtained that information in their capacity
as an entrusted person or an official of the entity. Information would be protected
information only if the disclosure of the information could reasonably be expected to:
found an action by a person other than the Commonwealth for a breach of a duty of
confidence;
prejudice the effective working of government;
prejudice the prevention, detection, investigation, prosecution or punishment of one or
more offences;
endanger a person's life or physical safety;
prejudice the protection of public safety or the environment (new subsections 41V(4)
and 41W(3)).
Recordkeeping requirements and powers to issue a notice to produce documents or give
information are important compliance mechanisms to ensure that those who are regulated by
the Act comply with their obligations under the Act and may be held accountable for their
actions or omissions. Removing the requirement to prove fault would provide a strong
incentive for such to make and retain records, and to produce documents or give information
where required. The existence of the offence is likely to place relevant persons on notice to
guard against the possibility of any contravention of the Bill.
Information collected under the Act plays an important role in informing the Commonwealth
in relation to matters covered by the objects of the Act, which is a necessary part of ensuring
that the Bill remains an effective and efficient mechanism to realise its intended human and
environmental health benefits. If protected information is used or disclosed for purposes other
than those authorised, and in the situations set out in subsections 41V(4) and 41W(3) (see
above), it may result in significant harm to, among other things, Australia's security or
international relations, or to public order or public health, as well as deter persons from
providing such information to the Commonwealth in the future. Strict liability offences
would ensure that any such unauthorised disclosures are able to be dealt with efficiently to
ensure confidence in the regulatory regime.
139
Item 4 of Schedule 4 of the Bill would insert strict liability offences into the Act relating to
the regulation of import, export and transit of hazardous waste, specifically:
the prohibition of the import of hazardous waste without a permit, non-compliance
with an import permit and non-compliance with conditions of an import permit,
including where the contravention injures or damages human beings or the
environment (new subsections 33A(5) and 33B(6));
the prohibition of the export of hazardous waste without a permit, non-compliance
with an export permit and non-compliance with conditions of an export permit,
including where the contravention injures or damages human beings or the
environment (new subsections 33C(5) and 33D(6));
the prohibition of the transit of hazardous waste without a permit or notification that
the person does not require a permit, non-compliance with a transit permit and non-
compliance with conditions of a transit permit, including where the contravention
injures or damages human beings or the environment (new subsections 33E(6) and
33F(7)).
Item 17 of Schedule 4 of the Bill would insert strict liability offences into the Act relating to
non-compliance with Ministerial Orders. Ministerial Orders may be issued under the Act
where there has been a contravention and may order a person to deal with hazardous waste in
a specified way by a specified time.
Item 20 of Schedule 4 of the Bill would insert a strict liability offence into the Act for the
transport of substances through a transit country, where the transit country considers the
substance to be a hazardous waste (despite the substance not being considered hazardous
waste under the Act) and has not approved its transit.
Strict liability offences in Schedule 4 are necessary to ensure the integrity of the regulatory
regime and effectively regulate the import, export and transit of hazardous waste to prevent
potential harm to the environment and human health resulting from hazardous waste. The
strict liability offences in Schedule 4 have a penalty of either 30 penalty units or 60 penalty
units. The actions which trigger the offences are simple, readily understood and easily
defended. Strict liability offences will, therefore, ensure the Minister can deal with non-
compliance efficiently to ensure public confidence in the regulatory regime and ensure
Australia continues to meet its international obligations under the Basel Convention.
Therefore, to the extent that strict liability offences limit the right to the presumption of
innocence, it is reasonable, necessary and proportionate.
Reversal of the burden of proof
Laws that shift the burden of proof to a defendant can be considered a limitation of the
presumption of innocence. Where a defendant bears an evidential burden in relation to an
exception it means the defendant bears the burden of adducing or pointing to evidence that
suggests a reasonable possibility that the exception has been met. Reversing the burden of
140
proof is not necessarily inconsistent with the presumption of innocence provided that the
reversal pursues a legitimate objective and is reasonable, necessary and proportionate to
achieving that object. Whether the right to the presumption of innocence is limited will
depend on the circumstances and justification for the reverse burden.
Item 2 of Schedule 3 of the Bill would set out a general prohibition on the use or disclosure
of protected information by a person who is or has been an entrusted person or an official of a
Commonwealth entity and who obtained the protected information in his or her capacity as an
entrusted person or official of the entity. Information would be protected information only if
the disclosure of the information could reasonably be expected to:
found an action by a person other than the Commonwealth for a breach of a duty of
confidence;
prejudice the effective working of government;
prejudice the prevention, detection, investigation, prosecution or punishment of one or
more offences;
endanger a person's life or physical safety;
prejudice the protection of public safety or the environment.
The prohibition would not apply if the use or disclosure is authorised by the Act, by another
law of the Commonwealth, or by a prescribed law of a State or Territory. The note to this
provision would clarify that the defendant bears an evidential burden to show that the use or
disclosure of information was authorised.
The reversal is justified in this instance, as the matter to be proved (that is, that the use or
disclosure of information was authorised) is a matter that would be peculiarly in the
knowledge of the defendant. Further, there are a number of authorised uses and disclosures
set out in this item and across Commonwealth law generally. In the event of a prosecution, it
would be significantly more difficult and costly for the prosecution to disprove all possible
circumstances than it would be for a defendant to establish the existence of one potential
circumstance. Consequently, in order to effectively protect information, it is reasonable,
necessary and proportionate to reverse the burden of proof and limit the right to the
presumption of innocence.
Right to privacy
Article 17 of the ICCPR prohibits arbitrary or unlawful interferences with an individual's
privacy, family, home or correspondence. The right to privacy can be limited to achieve a
legitimate objective where the limitations are lawful and not arbitrary. In order for an
interference with the right to privacy to be permissible, the interference must be authorised by
law, be for a reason consistent with the ICCPR and be reasonable in the circumstances.
Monitoring, investigation and audit powers
141
Schedule 2 of the Bill would trigger various monitoring and investigation powers that are
provided for in the Regulatory Powers Act, including powers relating to entry, inspection,
search and seizure. The monitoring and investigation powers are necessary for the legitimate
purpose of enabling the monitoring of compliance with the Act and the collection of
evidential material relating to contraventions of the Act. The use of these powers is
constrained, ensuring that their use is not arbitrary, as follows:
the powers cannot be exercised without consent being given to the entry to the
premises, or under warrant granted by an issuing officer. Where entry is by the
consent of the occupier, consent must be informed and voluntary, and can be
withdrawn at any time;
monitoring and investigation warrants can only be issued where the issuing officer is
satisfied of certain matters, by information on oath or affirmation, of an inspector;
an inspector cannot enter premises under warrant unless their identify card is shown
to the occupier of the premises and they provide the occupier with a copy of the
warrant, unless it is not practical in the circumstances (e.g.: an inspector is signalling
a ship).
Item 18 of Schedule 2 of the Bill would provide that the Minister may require that an audit be
carried out of an import proposal, an export proposal, a transit proposal or a Ministerial order
issued under Part 3 of the Act. In particular, an inspector may ask a person for information,
and a relevant person (including the Basel permit holder or former holder) is required to
provide facilities and assistance to an auditor. However, it is expected that only a very limited
amount of such information will be personal information. A person who is required to
provide information will have 'opted in' to the scheme and should expect that some personal
information may need to be provided in order to gain the benefits of that system. However, it
is anticipated that most holders of Basel permits and special permits will be body corporates,
for which the protections in the Privacy Act will not apply.
In summary, the monitoring, investigation and audit powers are necessary, proportionate and
reasonable in the pursuance of the legitimate objectives of the Bill.
Use and disclosure of information
Item 2 of the Schedule 3 would insert new provisions dealing with confidentiality and
disclosure of relevant information (including protected information) and other information
sharing matters.
New Subdivisions A and B of Division 2 of Part 4B would set out a number of authorised
uses and disclosures for relevant information (including protected information). Examples of
such circumstances include disclosure to other Commonwealth or State and Territory
government agencies; disclosure to a law enforcement agency; disclosure of protected
information that is already publicly available; or where the Minister reasonably believes that
the disclosure is necessary to prevent or lessen a serious risk to human health or the
environment, and the disclosure is for the purposes of preventing or lessening that risk.
These circumstances are clearly defined and are generally aimed at either assisting with the
effective operation and enforcement with the Bill; public interest matters where there is a
142
high bar to satisfy, or instances where there is no justifiable reason to prevent use or
disclosure of information.
Therefore, and again noting that most holders of Basel permits and special permits will be
body corporates, for which the protections in the Privacy Act will not apply, this limitation to
the right to privacy is reasonable, necessary and proportionate to achieve legitimate
objectives and is consistent with the right to privacy in Article 17 of the ICCPR.
Publication of information
Items 31 and 33 of Part 4 of Schedule 5 would allow the Minister to publicise certain matters,
including the particulars of any offence against the Act for which a person has been
convicted, any civil penalty order made against a person, any enforceable undertaking given
by a person, any injunction against a person and any Ministerial order issued under Part 3 of
the Act against a person. The Minister may also publish the name of the person. The purpose
of permitting such publication is to act as a deterrent to contravention and therefore assist
with ensuring the integrity of the regulatory regime. The matters that may be disclosed under
item 33 are clearly set out.
As set out above, it is expected that most persons whose names would be published will be
body corporates, for which the protection in the Privacy Act will not apply. In addition, many
of the matters will already be publicly available. Also, this publishing power is discretionary
and as such the Minister would retain the ability to decide not to publish any of the
information set out above if they consider that, in the particular circumstances the potential
adverse consequences of publishing the information outweigh the intended deterrence effect.
Item 31 of Schedule 5 would clarify that the particulars published under that subsection 33(1)
of the Act may include the name of the person concerned. This includes the names of persons
who apply for, and are granted, Basel and special permits under the Act. The publishing of
the names of the persons concerned is intended to provide transparency and assist industry in
understanding who has applied for, or holds, a Basel permit or special permit, and the export,
import or transit proposals covered by the permit. Publishing the names of permit applicants
and holders can assist entities to confirm that the person they are dealing with is complying
with the requirements of the Act, and is likely to provide relevant context for a permit
application for which there is an invitation for public comment, which is considered to
outweigh the potential adverse consequences to the individuals concerned.
For these reasons, this limitation to the right to privacy is reasonable, necessary and
proportionate to achieve legitimate objectives and is consistent with the right to privacy in
Article 17 of the ICCPR.
Right to freedom of expression
Article 19(2) protects the right to freedom of expression, and provides that this right shall
include freedom to seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or through any other media of
his choice.
Article 19(3) provides that the right to freedom of expression may be subject to certain
restrictions, where such restrictions are necessary for the respect of the rights of others or for
the protection of national security or public order or of public health or morals. Any such
143
restrictions must be prescribed by law and be reasonable, necessary and proportionate to
achieving a legitimate objective.
As set out above, Item 2 of Schedule 3 of the Bill would set out a general prohibition on the
use or disclosure of protected information by a person who is or has been an entrusted person
or an official of a Commonwealth entity and who obtained the protected information in his or
her capacity as an entrusted person. Information would be protected information only if the
disclosure of the information could reasonably be expected to:
found an action by a person other than the Commonwealth for a breach of a duty of
confidence;
prejudice the effective working of government;
prejudice the prevention, detection, investigation, prosecution or punishment of one or
more offences;
endanger a person's life or physical safety;
prejudice the protection of public safety or the environment.
An entrusted person would be limited to certain Commonwealth officials, being the Minister,
the Secretary, an APS employee of the Department or another person employed or engaged
by the Department. As such, the prohibition would not apply to the public at large. In
addition, item 2 of Schedule 3 would only restrict the right to freedom of expression if one or
more of the circumstances set out above are satisfied. These circumstances directly relate to
the objectives set out in Article 19(3), including the rights of others (such as persons who
submitted the information in confidence), national security and international relations, public
order and public health.
The prohibition will not apply if the use or disclosure is authorised by the Act, another
Commonwealth law or a prescribed State or Territory law. The statutory authorisations set
out in Schedule 3 would allow for legitimate disclosure of protected information in a number
of circumstances, including with consent, to reduce a serious risk to human health or the
environment, or to other government agencies for the purpose of their powers and functions.
For these reasons, the prohibition in item 2 of Schedule 3 is reasonable, necessary and
proportionate to achieving a legitimate objective, and is consistent with the right to freedom
of expression in Article 19(2) of the ICCPR.
Conclusion
The Bill is compatible with human rights because it promotes the right to health under Article
12(1) of the ICESCR. To the extent that it engages and limits other human rights (including
those under Articles 14(1), 14(2) and 17 of the ICCPR), those limitations are reasonable,
necessary and proportionate to achieve the legitimate aims of the Bill.
(Circulated by authority of the Minister for the Environment,
the Hon. Sussan Ley MP)
144